Tuesday, January 09, 2018

Making the case against juvenile sex offender registration requirements

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

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

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

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

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

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 05, 2018

In prelude to federal prosecution, killer of Kate Steinle gets three-year sentence on sole state count of conviction

As reported in this local article, "the Mexican national accused of shooting Pleasanton native Kate Steinle was sentenced today to three years in prison but will not serve any more time in state custody because of credit for time served." Here is more:

Jose Ines Garcia Zarate, 54, will now be handed over to federal authorities to be prosecuted again.

After a four-week trial that drew national attention, a jury in November acquitted the undocumented immigrant of murder, involuntary manslaughter and assault with a semiautomatic firearm in the July 2015 shooting of Steinle on San Francisco’s Pier 14. But jurors convicted him of being a felon in possession of a firearm.

Judge Samuel Feng this morning sentenced Garcia Zarate, who has already spent two and a half years in jail waiting for his trial, to time served on his possession conviction.

Garcia Zarate’s defense team urged Feng to throw it out, arguing that the jury received improper instructions about the charge. But Feng denied the motion this morning at San Francisco’s Hall of Justice....

In the coming days, Garcia Zarate will be arraigned in federal court, where he faces similar charges of being a convicted felon and an illegal immigrant in possession of a firearm.

His defense attorneys have argued that the shooting was an accident, suggesting that Garcia Zarate found the gun on the pier and that it accidentally discharged when he touched it, with the bullet ricocheting 78 feet before hitting 32-year-old Steinle. Garcia Zarate threw the gun into the water after it fired.

Prior related post:

January 5, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, December 26, 2017

"Association of Childhood Blood Lead Levels With Criminal Offending"

The title of this post is the title of this notable new research from JAMA Pediatrics published online today. The research examines what has been for some a popular theory to try to explain when violent crime increased and decreased considerable over the last half-century. As these "Key Points" reveal, the research does not support a lead-crime connection:

Question Is childhood lead exposure associated with criminal offending in a setting where the degree of lead exposure was not confounded by socioeconomic status?

Findings  In this cohort study of 553 New Zealanders observed for 38 years, lead exposure in childhood was weakly associated with official criminal conviction and self-reported offending from ages 15 to 38 years. Lead exposure was not associated with the consequential offending outcomes of a greater variety of offenses, conviction, recidivism, or violence.

Meaning  Responses toward lead exposure should focus on consequences for health, not potential consequences for crime.

The notable uptick in violent crime in the US over the last two years had seemed to significantly mute a number of earlier discussions of the prospect that reduced led exposure largely explained the major modern crime declines from 1991 through 2014. Of course, neither recent crime data in the US nor this study from New Zealand can itself conclusively prove or disprove any contestable proposition. But I am always inclined in these setting to assert that human behaviors of all sorts often defy any simple explanation.

Some prior related posts talking up lead-crime links:

December 26, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (2)

Sunday, December 24, 2017

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, December 21, 2017

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

The title of this post is the headline of this recent New York Times commentary authored by Sam Corbett-Davies, Sharad Goel and Sandra González-Bailón. Here are excerpts:

In courtrooms across the country, judges turn to computer algorithms when deciding whether defendants awaiting trial must pay bail or can be released without payment. The increasing use of such algorithms has prompted warnings about the dangers of artificial intelligence.  But research shows that algorithms are powerful tools for combating the capricious and biased nature of human decisions.

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes.  In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released.  Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

Algorithms have also proved useful in informing sentencing decisions. In an experiment in Philadelphia in 2008, an algorithm was used to identify probationers and parolees at low risk of future violence.  The study found that officers could decrease their supervision of these low-risk individuals — and reduce the burdens imposed on them — without increasing rates of re-offense.

Studies like these illustrate how data and statistics can help overcome the limits of intuitive human judgments, which can suffer from inconsistency, implicit bias and even outright prejudice.

Algorithms, of course, are designed by humans, and some people fear that algorithms simply amplify the biases of those who develop them and the biases buried deep in the data on which they are built.  The reality is more complicated.  Poorly designed algorithms can indeed exacerbate historical inequalities, but well-designed algorithms can mitigate pernicious problems with unaided human decisions.  Often the worries about algorithms are unfounded...

Still, like humans, algorithms can be imperfect arbiters of risk, and policymakers should be aware of two important ways in which biased data can corrupt statistical judgments. First, measurement matters. Being arrested for an offense is not the same as committing that offense.  Black Americans are much more likely than whites to be arrested on marijuana possession charges despite using the drug at similar rates. As a result, any algorithm designed to estimate risk of drug arrest (rather than drug use) would yield biased assessments.  Recognizing this problem, many jurisdictions — though not all — have decided to focus on a defendant’s likelihood of being arrested in connection with a violent crime, in part because arrests for violence appear less likely to suffer from racial bias....

The second way in which bias can enter the data is through risk factors that are not equally predictive across groups.  For example, relative to men with similar criminal histories, women are significantly less likely to commit future violent acts.  Consequently, algorithms that inappropriately combine data for all defendants overstate the recidivism risk for women, which can lead to unjustly harsh detention decisions.  Experts have developed gender-specific risk models in response, though not all jurisdictions use them. That choice to ignore best statistical practices creates a fairness problem, but one rooted in poor policy rather than the use of algorithms more generally.

Despite these challenges, research shows that algorithms are important tools for reforming our criminal justice system.  Yes, algorithms must be carefully applied and regularly tested to confirm that they perform as intended. Some popular algorithms are proprietary and opaque, stymieing independent evaluation and sowing mistrust. Likewise, not all algorithms are equally well constructed, leaving plenty of room for improvement.  Algorithms are not a panacea for past and present discrimination.  Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices.  But well-designed algorithms can counter the biases and inconsistencies of unaided human judgments and help ensure equitable outcomes for all.

December 21, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (2)

Saturday, December 16, 2017

"Why hiring people with criminal records benefits all of us"

The title of this post is the headline of this recent FoxNews commentary authored by Mike Jandernoa.  Here are excerpts:

In the past, many employers would often not consider hiring people who had even minor criminal records.  But as the former CEO of a 10,000-employee organization, I have one message for America: we can no longer exclude this vital component of our workforce.

An estimated one in three American adults has a criminal record of some kind.  And about 600,000 people leave our nation’s prisons every year, looking to rejoin the workforce. While individuals in this group of workers won’t be right for every job, the right job is out there for everyone.

The benefits of boosting employment for those with criminal records are significant.  First, opening up opportunities to this population will make our country safer. Right now, almost 60 percent of individuals remain unemployed a year after being released from incarceration.  It’s in our collective self-interest for them to get jobs, because steady employment is one of the best ways to ensure that individuals lead productive, crime-free lives.  In one study of 6,000 returning citizens, employment cut the rate of those who committed a new crime in half.

Second, employers all across the country are suffering from a dearth of skilled labor.  Every year, one major national bank surveys small businesses across this country.  This year the survey found incredible optimism: 80 percent of employers said their business is stronger than ever; 40 percent said they plan to make a capital expenditure to grow their companies; and a quarter of those surveyed said they plan to hire more workers.  In West Michigan, most of the business leaders I know plan to expand their workforces. The downside?  The businesses can’t find enough workers....

Our region is almost at full employment, so we must look for alternatives. We have a very strong manufacturing base, and these businesses are looking for people who will show up on time and test negative for drugs — that’s it.  This opens the door for people who were formerly incarcerated and who are serious about turning their lives around.  It is not unheard of for employers to send vans to pick up workers who are in residential community corrections programs because the employers are so desperate for workers.

Some of our country’s largest employers are making second-chance hiring their official policy.  Target and Home Depot have “banned the box” in their employment practices.  “Ban the box” delays inquiry into an applicant’s criminal history until late in the hiring process, ensuring that those with criminal records aren’t tossed aside before having an opportunity to detail their skills, training and qualifications. This policy also allows these individuals to explain the circumstances of their offense, and show potential employers how they have turned their lives around....

Reforms to seal or erase records of criminal convictions are also a priority for job creators.  These policies seal minor criminal records after a certain crime-free period. Research shows that low-level offenders who have remained crime-free for three to five years are no more likely to commit a crime than anyone else.  And in many states, when minor criminal records are sealed, law enforcement and judicial officers still have access to these records, ensuring that public safety continues to be a priority.

Almost all states have some mechanism through which certain criminal records can be erased or sealed, but erasing records at the federal level is virtually impossible. Fortunately, the issue is gaining traction in Congress. Sen. Rand Paul, R-Ky., is spearheading the REDEEM Act, with bipartisan support.  And Rep. Hakeem Jeffries, D-N.Y., introduced the Renew Act with Rep. Trey Gowdy, R-S.C.

Occupational licensing reform is another issue important to the business community. Today one in four occupations requires a government license — but a criminal history often bars an individual from the licensing process.  Ironically, such restrictions make us less safe.  One study showed that states with more burdensome licensing laws saw an average 9 percent increase in recidivism, while those with the lowest burdens had a recidivism reduction of 2.5 percent.

States as diverse as Illinois, Arizona, and Louisiana have already begun peeling back the layers of government-issued permission slips to work.  At the federal level, the New HOPE Act, introduced by Rep. Tim Walberg, R-Mich., and similar legislation sponsored by Sen. John Cornyn, R-Texas, would allow states to use federal funding to identify and reduce unnecessary licensing barriers within their regulations and statutes.

Elected officials should look to job creators for sound public policy.  I urge my fellow employers to beat the drum even louder and make their voices heard at the local, state and federal level. We can improve public safety, strengthen the economy and broaden our pool of skilled labor through commonsense criminal justice reforms and offering second chances for those who have earned them.  I don’t know a good businessperson who would turn down that deal.

December 16, 2017 in Collateral consequences, Offender Characteristics, Who Sentences? | Permalink | Comments (5)

Friday, December 15, 2017

Remarkable story of jury sentencing, jury actions and a victim's response from Virginia

A helpful reader made sure I did not miss this remarkable story from Virginia as reported in the Washington Post under the headline "First the jury convicted this 19-year-old maid for stealing. Then they took up a collection to pay her fine." Here are highlights:

After she was arrested, Mendez Ortega spent eight days in jail until she was released on $1,000 bond . The jury was not told that.  The jury also was not told that Mendez Ortega apparently is not in the country legally, as Copeland said she was told by prosecutors, because it was not relevant to whether she stole the rings.  “I think it’s relevant to the case,” Copeland said.  She said the penalties of a felony conviction, such as not being able to vote or buy a gun, would not be actions available to an immigrant in the country illegally anyway....

The trial seemed utterly ordinary.  A 19-year-old maid swiped a woman’s three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Va., but later returned them after the police questioned her.  She was charged with felony grand larceny.

What the jury did was extraordinary.  They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony.  But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt.  One lady pulled out a $20 bill, and just about everybody chipped in.”  Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80....

The two-day trial was held in July, but the sentencing was last Friday before Fairfax County Circuit Court Judge Robert J. Smith.  Mendez Ortega’s lawyer, assistant public defender Michael C. Cash, asked the judge to defer the case and not enter a conviction or sentence in light of the defendant’s actions and the jury’s response.  Smith declined, entered the conviction and imposed the $60 fine.  Numerous veteran criminal lawyers, on both the prosecution and defense sides, said they had never heard of a case where a jury paid a defendant’s fine.

A happy holiday story, right?  Well what if you’re the woman whose rings were stolen?  Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.  “I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft.  “If she had accepted accountability, I would be okay with all of this.  The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a series of lies from the start, and then unfurled a tragic life story that convinced the jury to impose a punishment of a $60 fine.  “I was outraged,” Copeland said.  “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept.  The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said.  Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.... 

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her.  But the legal standard was very clear.”  Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.  Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her?  I don’t get this. That’s basically saying it’s okay to steal.”

Then during the sentencing phase, Mendez Ortega took the stand.  She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500.  She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15, that she was pregnant again at 19 and had no job, according to court records. “The whole time she was telling the sob story,” Lisa Copeland said, I looked at my husband and said, ‘I’ve heard enough of this.'”  She noted that after Mendez Ortega took the rings, “she lied to the cops, she lied to her employers.  She didn’t turn in the rings, she made somebody else do it.  She confessed, but claimed that the rings were in the bathroom.  And then she tried to blame her boss.”

When the jury went back to deliberate on a sentence, the jurors said they quickly agreed that no jail time was appropriate, and that only a small fine should be imposed. “We all came to the conclusion,” Memmott said, “we should fine her the amount she made for a day’s work.”...  “The degree of empathy that was shown by these citizens,” said a third juror who asked to remain nameless, “and the serious way everybody took their responsibility, was really remarkable.”

Remarkable is the word I would attach to every part of this story, while also noting that this would only be possible in a jurisdiction like Virginia that includes a system of jury sentencing. Interestingly, this story does not speak to whether or how the victim here spoke during the trial/sentencing proceedings.  I am pretty sure victims in Virginia have a right to speak at sentencing, and I wonder if this now-aggrieved victim is upset in part because she did not exercise that right.

December 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Saturday, December 09, 2017

Notable new push to push for expanded use of compassionate release programs

As reported in this press release from Families Against Mandatory Minimums, "a coalition of criminal justice reform, health policy, human rights, and faith-based organizations launched a new public education and advocacy campaign to urge the creation, expansion, and robust use of federal and state programs that grant early release to prisoners with compelling circumstances, such as a terminal or age-related illness."  Here is more from the release (with links from the source):

The Campaign for Compassionate Release” comprises a diverse group of organizations, including Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network.  “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones. These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up,” said Mary Price, general counsel of FAMM.

To kick off the Campaign, 36 organizations and individuals endorsed a statement of principles. The principles focus on the humanitarian, public safety, and economic benefits of granting early release to elderly prisoners, those with disabilities, or prisoners facing extreme family changes. While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program.

The federal compassionate release program, created by Congress, has existed for decades but is rarely used.  The Bureau of Prisons (BOP) must decide if prisoners meet program criteria and then seek their release in the courts, but in reality, the BOP only brings a trickle of release motions to the courts annually. Delays also plague the program; prisoners commonly die awaiting a decision.  Congressional appropriators, government watchdogs, the U.S. Sentencing Commission, and outside advocates all have questioned the BOP’s failure to use the program as Congress intended, especially since sick, dying, and elderly prisoners are the least likely to re-offend and the most expensive to house.

Today, many Campaign members and others sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. The letter echoes a similar letter signed by a bipartisan group of senators in August.

December 9, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, December 08, 2017

Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

The typical defendants sentenced in federal court for child porn offense have not been convicted of contact offenses and have strong arguments for being sentenced below the severe federal sentencing guideline ranges.  But former USA Gymnastics doctor Larry Nassar is not your typical federal child porn offender and, as reported here, he did not convince a judge he should get a below guideline sentence. Indeed, he got the maxed out in every possible way at his sentencing in federal court yesterday:

Larry Nassar, the 54-year-old former MSU and USA Gymnastics doctor whose work took him to multiple Olympic Games, received an effective life sentence when a federal judge on Thursday sentenced him to 60 years in federal prison on child pornography charges.

"He has demonstrated that he should never again have access to children," U.S. District Judge Janet Neff said as she imposed a sentence that went beyond guidelines calling for 22 to 27 years in prison. He was sentenced to 20 years on each of three counts to which he's admitted. The sentences are to be served consecutively.

Neff also ordered that his federal time would be served consecutively to state sentences for sexual assault to which he's also admitted. He will be sentenced next month on those charges.The courtroom was filled to capacity. Among those in attendance were several victims of Nassar's admitted sexual assault, their relatives and their attorneys. Several victims said after the sentencing they were still trying to process their feelings, but it was a step toward justice.

“I was blown away with what the judge did today, and I thought it was very fitting," Larissa Boyce, who first raised concerns about Nassar to an MSU coach in 1997, said at a news conference after the hearing. "I can’t thank her enough for the things that she said."

In court filings last week, Nassar's attorneys asked Neff to show leniency, saying the doctor had worked toward redemption by helping fellow inmates and taking Bible classes since his arrest nearly a year ago. Nassar, speaking in a barely audible voice from the courtroom podium on Thursday, told Neff he’d long battled an addiction he likened to alcoholism or drug addiction. His shame kept him from asking for help, he said. He said he hoped his crimes would educate people about the problem to prevent others from being hurt in the future....

But Neff said Nassar’s crimes hurt so many people on so many levels. That includes the unnamed children in the pictures who feel assaulted every day knowing someone somewhere could be viewing their bodies, she said. It includes the women Nassar assaulted who now struggle to trust doctors and struggle with their own sense of self-worth.

The judge said she'd sentenced defendants in child pornography cases for a decade but Nassar was "unique" in the sheer volume of pornography he'd collected and the brazen way he assaulted women during medical appointments with parents in the room. "You have to wonder whether he felt he was omnipotent, whether he felt he was getting away with something so cleverly," Neff said as several victims and family members in the room started to cry. "I am a mom of two daughters. I cannot imagine that kind of situation."

Federal prosecutors had argued for the maximum 60 years, saying Nassar "poses an immense risk to the community" and quoting one victim who said he "will not hesitate to reoffend" if he's ever freed. Neff agreed.

Nassar pleaded guilty in July to three federal charges after investigators said he possessed at least 37,000 graphic videos and images of child pornography, including images of prepubescent children engaged in sex acts. He also pleaded guilty to obstruction of justice for trying to destroy the evidence. The U.S. Attorney's Office said Nassar paid to have his work laptop wiped clean and threw away hard drives containing the pornography. Investigators were only able to obtain those hard drives at Nassar's Holt property because the garbage truck happened to be running late that day, according to court records.

Some of the videos appeared to show Nassar assaulting young girls in a pool, investigators said. As part of a deal with federal prosecutors to obtain his guilty plea, prosecutors agreed they would not charge him with alleged sexual exploitation of children in relation to four reported victims. Thursday's sentencing ends one of three criminal cases against Nassar. He's also pleaded guilty to sexual assault charges in both Ingham and Eaton counties and could get to up to life in prison in those cases when he's sentenced next month.

Prior related post:

December 8, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 07, 2017

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"The Effects of Aging on Recidivism Among Federal Offenders"

The title of this post is the title of this notable new report released today by the US Sentencing Commission. Here is how the USSC describes the report and its highlights on this webpage:

The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...

Report Highlights

Older offenders were substantially less likely than younger offenders to recidivate following release.  Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release.  The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.

For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge.  By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.

Age and criminal history exerted a strong influence on recidivism.  For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older.  For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.

Education level influenced recidivism across almost all categories.  For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%).  Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).

Age exerted a strong influence on recidivism across all sentence length categories.  Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.  In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.

For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups.  For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders.  For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud).  Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).

At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics.  For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners.  Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.

December 7, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (2)

Wednesday, December 06, 2017

Notable state and federal developments in the Garcia Zarate/Kate Steinle case

Last week, I blogged here about the California state court verdict in a high-profile homicide case, asking in the title of my post "Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after 'disgraceful verdict in the Kate Steinle case'?."  As noted below, we already have an answer to this question, though there is also state prosecution news we should cover first.

Specifically, as reported here, the "attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well." Here is more:

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.  Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

Because I am not well versed in California's law of possession, I cannot provide an informed assessment of whether this defense claim provides a compelling basis to reverse the one state conviction the state jury brought back against Garcia Zarate. But I can provide a link to and excerpt from this press release from the US Department of Justice highlighting why federal possession law is now of great import to Garcia Zarate:

A federal grand jury indicted Jose Inez Garcia-Zarate today for being a felon in possession of a firearm and ammunition, and for being an illegally present alien in possession of a firearm and ammunition, announced United States Attorney General Jefferson B. Sessions; United States Attorney Brian J. Stretch from the Northern District of California; and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent in Charge Jill Snyder.

According to the indictment, on July 1, 2015, Garcia-Zarate, a citizen of Mexico who reportedly is 47 years old, possessed a semi-automatic pistol and multiple rounds of ammunition in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and 18 U.S.C. § 922(g)(5) (unlawfully present alien in possession of a firearm).

An indictment merely alleges that a crime has been committed and Garcia-Zarate, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. Garcia-Zarate currently is in state custody on other charges.  If convicted of either violation of 18 U.S.C. § 922(g), Garcia-Zarate faces a maximum statutory penalty of 10 years in prison.  However, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Prior related post:

December 6, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Envisioning an Alternative Future for the Corrections Sector Within the U.S. Criminal Justice System"

The title of this post is the title of this notable Rand research report that I just came across authored by Joe Russo, George Drake, John Shaffer and Brian Jackson. Here is a summary with some points from the report in via this Rand webpage:

Challenged by high costs and concerns that the U.S. corrections sector is not achieving its goals, there has been a growing focus on approaches to reform and improve the sector's performance.  Policies initiated during the tough-on-crime era led to aggressive prosecution, lengthier sentences, and an exploding correctional population.  In recent years, the corrections sector has been gradually shifting toward efforts to provide treatment, alternatives to incarceration, and enhanced programs to facilitate offender reentry.  Although judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform, the sector has a unique perspective and therefore can provide critical insight regarding what is working, what is not, and how things should be.

To contribute to the policy debate on the future of the corrections sector, researchers interviewed a group of prominent correctional practitioners, consultants, and academics. This report outlines their perspectives on the current state of corrections and their vision for the future.  These experts were specifically asked how they would redesign the corrections sector to better serve the country's needs.  The findings offer both an assessment of what is and is not working now and potential solutions to better achieve justice policy goals going forward.

Key Findings

The Corrections Sector Has Little Control Over the Many Factors That Affect Its Operations

  • Judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform.
  • The sector does have some control over how offenders are treated once they enter the system.

A Panel of Experts Agreed That the Sector's Primary Role Should Be to Facilitate Positive Offender Behavioral Change, but This Is a Complex Task

  • Three broad types of changes would be necessary for the sector to support this mission and help ensure offenders' successful reintegration into society: new programs and improved education and training for corrections staff, the elimination of revenue-generating correctional operations, and cultural change to prioritize rehabilitation over punishment.
  • There are many opportunities for the sector to leverage the latest developments in science, technology, and evidence-based practices to create alternatives to incarceration, guide the investment of scarce resources, and engage communities in initiatives to reduce recidivism and support offender reentry.

Recommendations

  • Panelists put forward several solutions to support the corrections sector's mission of facilitating positive offender behavior change, including diverting low-risk offenders and those with mental health or substance use problems to specialty facilities while reserving prisons for violent and dangerous offenders; shortening sentences and ensuring that offenders have a clear, attainable path to release; and creating smaller and safer facilities that are closer to cities with programs to support reentry.
  • In the near term, panelists recommended expanding and adequately funding probation, parole, and community-based resources to support offenders' reentry into their communities.

December 6, 2017 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, December 05, 2017

Notable advocate makes notable pitch to abolish juve LWOP

Malcolm Jenkins, who I still remember as a great Buckeye ballplayer, is now an NFL star using his voice and platform to discuss criminal justice reform issues.  He has this notable new commentary about juve LWOP under this full headline "America is the only country in the world still sentencing our kids to die in prison:For too long we have depicted our youth, especially our black youth, as lost causes. But they can change."  Here are excerpts:

As a black man in America, I’m keenly aware that people who look a lot like me are over-represented in the criminal justice system. The way adults of color are treated in our justice system is already upsetting, but the way our justice system treats children, especially black children, is simply deplorable.

Nowhere is this more clearly evident than on the issue of juvenile sentencing. Black children are grossly over-represented when it comes to kids sentenced to life without parole. This disturbing reality is personal to me: In Pennsylvania, where I live and play football for the Philadelphia Eagles, nearly 80% of juvenile lifers are black.

In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances.  Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed.  Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance.  Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.”  But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth.  We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole....

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most.  According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once.  Today, these kids deserve a second chance.  Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way.  Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause.  But they can change.  These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s.  These are children.  Studies show that even those accused of the most serious crimes age out of crime....

A lot of people might question why, as a professional athlete, I’m speaking out on criminal justice issues.  I believe that it is my duty to use my platform to raise awareness of the kinds of institutional injustices that so rarely make the news — and that we so rarely question.  And I want to elevate the work that so many amazing community grassroots organizations are doing to try and bring about this change.

Fortunately, there is some hope, finally, in my hometown.  Philadelphia’s newly elected District Attorney has stated he will not seek juvenile life without parole (JLWOP) for any kid, no matter the crime. He has also vowed to allow older cases to be considered for parole.  This is a great start.  Now, other prosecutors should follow suit.

No matter their race or hometown, rehabilitation is a beautiful thing. After all, there is nothing more American than giving someone who has worked hard a (second) chance to pursue life, liberty and the pursuit of happiness.

December 5, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Saturday, December 02, 2017

Thanks to SCOTUS McDonnell ruling, record-long sentence for Congress member reduced to (significant) time served

A little more than eight years ago, as detailed in this post, federal prosecutors were seeking a (within-guideline) sentence of 27 years or more years for former US Representative William Jefferson following his bribery convictions.  Jefferson’s attorneys urged a sentence of less than 10 years, noting that no member of Congress had ever previously been sentenced to more than 100 months in prison.  As reported in this post, US District Judge T.S. Ellis ultimately imposed a record-setting prison sentence of 13 years.

Fast forward to this press story from yesterday, and we learn the details of the notable final chapter in this particular federal white-collar sentencing saga:

Ex-New Orleans Congressman Bill Jefferson walked out of a suburban Washington courthouse Friday owing no further obligations to the United States government, aside from monthly check-ins with a federal parole officer.  The five years and five months Jefferson spent in prison, as well as the $189,215.42 the feds seized from his bank accounts, served as enough punishment for Jefferson’s corruption convictions, U.S. District Judge T.S. Ellis III ruled.

The judge signed off on an agreement between Jefferson’s attorneys and federal prosecutors letting the disgraced former lawmaker walk away from the public corruption case against him after serving less than half of his original prison sentence.  “So, Mr. Jefferson, this ends a long saga,” Ellis said as Jefferson, his balding head shaved smooth and shoulders stooped slightly, stood before him. “You have paid your debt."

The former nine-term Democratic congressman was toppled from power a decade ago amid high-profile FBI raids on his home and congressional offices. Agents had secretly recorded meetings between Jefferson and a wealthy Virginia businesswoman acting as an FBI informant, eventually capturing Jefferson on video accepting a suitcase with $100,000 in cash in a suburban hotel room.  Agents later found $90,000 of the money in Jefferson’s freezer, wrapped in tinfoil and stuffed inside frozen food boxes.  The raid garnered national headlines and left Jefferson’s reputation in tatters....

Ellis, who presided over Jefferson’s trial and originally sentenced him to 13 years in federal prison, threw out seven of the ten counts against Jefferson in October in light of a 2016 U.S. Supreme Court decision requiring federal prosecutors to do more to prove public officials had abused their positions in corruption cases. The decision, which vacated the corruption conviction of former Virginia Gov. Robert McDonnell, triggered a wave of appeals from other former public officials. The judge also ordered Jefferson to be released early from federal prison.

Jefferson, however, had faced the prospect of returning to prison. Ellis left three counts of the conviction standing, each of which carried a potential prison term well beyond the five years Jefferson spent locked up. At Friday’s hearing, Jefferson said little, instead letting his attorneys — both of whom represented him during his eight-week trial — do the talking....

Jefferson offered his gratitude to friends, relatives and supporters who’d stood by him over the years while speaking to reporters outside the courtroom.  The former politician said he plans to stay retired from public life but hopes to become involved in the community and his local church....  “I don’t have time to be angry with anything,” Jefferson said when asked if he harbored bitterness about his time in prison.  Jefferson maintained his innocence in the case even after his conviction but declined Friday morning to say whether he did anything wrong.

As part of the deal with prosecutors, Jefferson accepted his conviction on two federal conspiracy counts and agreed not to file any further appeals in the case.  Ellis, in signing off on the agreement, noted that federal sentencing guidelines recommend 8 to 10 years in prison on those two charges.  The judge called it a fair resolution for everyone involved.  Yet Ellis still castigated the ex-lawmaker’s actions as “venal” in handing down the lesser sentence.

Prior related posts from 2009:

December 2, 2017 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, November 28, 2017

"Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice"

The title of this post is the title of this notable new paper now on SSRN authored by Mark Bennett and Victoria Plaut. Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery.  We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor.  We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences.  We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

November 28, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Monday, November 27, 2017

Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges

For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:

Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”

The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.

The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.

The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:

‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.

‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”

‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”

‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”

‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”

State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”

Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.

Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”

Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.

Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.

“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.

The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.

Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”

At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:

Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System

Justice Reinvestment in Ohio: Overview

Justice Reinvestment 2.0 in Ohio: Launch Presentation

November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, November 18, 2017

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Wednesday, November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, November 14, 2017

New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"

This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:

The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system.  The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.

The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York.  In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....

“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased?  Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense?  As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”

“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:

  • Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.

  • In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations.  The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.

  • Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.

  • Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.

  • Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.

  • Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).

  • Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.

The report’s authors conclude with six recommendations, with guidance from previous research:

  • Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.

  • Build a risk-based system of pretrial practices to replace the current money-based bail system.

  • Keep youth out of confinement and the adult criminal justice system.

  • Review and modernize sentencing practices and policies.

  • Encourage local, community-driven solutions to crime through incentive funding.

  • Measure criminal justice success with better data collection and reporting.

“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”

November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Monday, November 13, 2017

Interesting reviews of accomplishments and challenges in dealing with drug cases in West Virginia

At a time when there is so much talk about reforming how the criminal justice deals with low-level drug offenders, I found both encouraging and depressing this recent local story reporting on recent developments in West Virginia.  The article is headlined "Drug offenses straining already overburdened jail system, prosecutor says," and here are excerpts:

With its jails and prisons already bursting at the seams, Kanawha County Prosecuting Attorney Chuck Miller figures West Virginia is either going to have to come up with another way of handling drug offenders or plan on building more correctional facilities.  Miller recently discussed the available alternative sentencing options with a legislative committee tasked with looking at problems facing the state’s correctional system, points out jails and prisons here are understaffed and overflowing, in large part because drug addiction and the crimes associated with it have spiraled out of control.

How bad is it? According to the Department of Military Affairs & Public Security, 43 percent of the offenders processed at one of the state’s regional jails last year had to go through a detoxification protocol due to substance abuse issues....

It’s not a new problem, either. State leaders long ago realized the prison population was outstripping available resources and in 2012 decided to carve out a data-driven strategy to address it — realizing that, left unchecked, they’d have to spend at least $200 million to build more prison cells plus another $70 million a year in operating costs.  Rather than build more prisons, West Virginia opted to increase its reliance on community-based resources, including drug courts and day report centers.

They’ve not been without success: More than 1,300 adults and juveniles have graduated from drug court, typically an 18-24 month program that helps low-risk offenders.  As of March 2016, West Virginia’s drug courts had graduated 857 and 506 juveniles, in each case just over half of those who’d been accepted in the program.  About 500 more were still active in the program.  According to the West Virginia Supreme Court:

• Recidivism rates for adults after one year was reported to be 1.88 percent, and after two years, 9.4 percent — much lower than the nearly 80 percent recidivism rate for drug offenders who’d been incarcerated. Recidivism for juvenile graduates was said to be 14.6 percent, compared to 55.1 percent for youths in traditional juvenile probation programs.

• Per participant adult drug court program costs — about $7,100 for adults and $6,900 for juveniles — was a fraction of the per diem for housing adult offenders in regional jail (more than $17,000 per year) or prison (more than $28,000 per year).  Likewise, the state said it spent $6,900 to rehabilitate its juvenile drug court alumni — a fraction of what it would have cost to keep them in a secure juvenile facility, a group home or a hospital treatment facility.

Day Report Centers also provide intensive supervision and individualized services, including counseling, to non-violent offenders in lieu of incarceration, helping parolees reintegrate into society and saving millions in jail costs.  Kanawha’s Day Report Center, for example, said its program had saved more than $3 million in jail costs in 2016.  Since its inception in 2005, KDRC has graduated nearly 1,000 clients and had a recidivism rate under 13 percent.

Also in West Virginia’s sentencing toolkit: Pre-trial diversion agreements which allow first-time offenders to avoid jail by obtaining counseling and other treatment, and home confinement, allowing offenders to serve their sentence at home with electronic supervision in lieu of incarceration.  Participants generally must stay within range of a landline telephone and are subject to random drug and alcohol testing....

The programs aren’t without their challenges, however. Pre-trial diversions, for instance, require offenders to undergo treatment, but “availability of detoxification treatment facilities is sparce,” Miller notes.  Likewise, home confinement requires a home and a landline phone.

But, with an opiate epidemic showing no sign of slowing, he said West Virginia is going to have to find answers — even if means building a secure facility dedicated to treating offenders with drug dependencies, one they couldn’t walk away from, or expanding traditional jails and prisons.

“If we have a facility devoted to drug treatment, maybe we’d decrease crowding in our jails and increase our success with people,” Miller said, adding, “We’re not going to prosecute our way out of it and every solution ... requires money.”

November 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"The Boom and Bust of American Imprisonment"

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

We are teetering at the edge of a mass incarceration binge.  Lawmakers are reconsidering overly harsh criminal punishments.  At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis.  Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals.  Second, I discuss law professor Sam Buell's "Capital Offenses," an engaging book that examines why it is so challenging to punish business crimes due to the structure of the economy, corporations, and our federal criminal justice system.  Third, I turn to law professor Darryl Brown's "Free Market Criminal Justice," which explores the role of free market ideology in the divide in American criminal justice. 

I conclude by exploring the implications of these arguments and this research for mass incarceration as well as corporate accountability at the high and low ends of our criminal justice system — we are finally turning a corner on mass incarceration in this country, and the problems and solutions that these authors identify partly explain why and whether better things or new fears lie around that corner.  We are at a crossroads.  We need voices of reason like Soltes's, Buell's, and Brown's, today more than ever.

November 13, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Tuesday, November 07, 2017

Interesting account of "Five myths about white collar crime"

I just saw this notable recent commentary authored by Nicolas Bourtin, a former federal prosecutor, published in the Washington Post outlook section. Here is how the lengthy commentary starts along with the myth headings and the section most focused on sentencing:

Bankers and government officials continue to feature prominently on our newspapers’ front pages — and not in a good way. Since the financial crisis of 2008, a string of political and corporate scandals has played out in our political and financial centers, and recent investigations of people close to President Trump, including Paul Manafort and Rick Gates, have produced indictments for money laundering and tax fraud. Corporate malfeasance, corruption and tax fraud are shrouded in misconceptions. Here are five enduring myths about white-collar crime.

MYTH NO. 1: Prosecutors fear prosecuting powerful defendants....

MYTH NO. 2 White-collar defendants never serve real time.

In the wake of the financial crisis, publications such as Fortune and the Nation have sought to answer why its architects don’t do hard time for their crimes. “Why does the Justice Department appear to have given up on putting white-collar criminals in jail?” Fortune asked. When academics began studying the subject in the 1970s, they noted that federal judges were typically lenient toward white-collar offenders.

Those days are over. Judicial discretion in sentencing was greatly limited by the adoption of the Federal Sentencing Guidelines in 1987, whose penalties for fraud were further enhanced after the Enron scandal broke in 2001. And although the Supreme Court held in 2005 that the guidelines were advisory and no longer mandatory for judges, sentences for white-collar defendants have been getting harsher, not more lenient.

According to the U.S. Sentencing Commission’s 2013 Report on Sentencing Trends, nearly 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012. In 1985, by comparison, the average sentence for white-collar crimes was just 29 months.

MYTH NO. 3 Trump’s administration won’t enforce anti-corruption laws....

MYTH NO. 4 No one went to prison as a result of the financial crisis....

MYTH NO. 5 Financial crime is the same as robbery or theft....

November 7, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, November 03, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

"Multiple Offenders and the Question of Desert"

The title of this post is the title of this new paper by Youngjae Lee now available via SSRN. Here is the abstract:

This essay, published as a chapter in Sentencing Multiple Crimes (Jesper Ryberg, Julian V. Roberts & Jan W. de Keijser eds., 2017) examines the bulk-discount approach to sentencing multiple offenders.  It argues that bulk discounts are not only appropriate and even mandatory from the just deserts perspective, but that as a general matter, there should be a substantial reduction in sentence for each additional offense when it comes to multiple-offense sentencing.

After providing specific examples of multiple offenders who were sentenced consecutively, the chapter discusses the relationship between culpability and character from the perspective of just deserts theory or retributivism.  It then advances the claim that sentences for multiple offenders should not reach the level at which the state would be communicating an unfairly and inappropriately harsh assessment of the character of each multiple offender.  It also considers the ways in which multiple offenders are more culpable than single-crime offenders and concludes by insisting that discounts for multiple offenders and premiums for repeat offenders are not inconsistent.

November 3, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Thursday, November 02, 2017

Lots more impressive work in Teen Vogue's "Kids Incarcerated" series

In this post a few weeks ago I noted that Teen Vogue has been giving sustained attention to the issues of juvenile incarceration in this "Kids Incarcerated" series of articles.  This series now has dozens of articles that are work checking out, and these recent articles especially caught my attention and seemed worthy of additional promotion (though every article in the series looks great):

November 2, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, November 01, 2017

Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death

One way the criminal justice system has been operationalized in response to the opioid crisis has been in the form of various state homicide charges — ranging from manslaughter to murder — being brought against persons who distribute drugs that result in the death of a drug user.  But this news report from North Carolina, headlined "How the ‘Len Bias Law’ of 1988 is being used to get longer prison sentences today," details how federal prosecutors can and will be able to pursue and secure more extreme sentences on drug offenders without ever bringing a homicide charge:

In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area.  The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year.  On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said.

Elton Wayne Walston was sentenced to 27 years in prison Monday after he was found guilty of distributing heroin that resulted in the death of a Wilson man in 2015. Walston, 66, was also found guilty of one count each of possession with intent to distribute heroin and illegally possessing a firearm and ammunition, along with four counts of distribution of heroin.

U.S. District Court Judge Louise W. Flanagan handed down the sentence, which was announced Tuesday in Raleigh by Robert J. Higdon Jr., the U.S. Attorney for the Eastern District of North Carolina. Walston was sentenced under the U.S. Anti-Drug Abuse Act of 1988, which carries a mandatory minimum prison term of 20 years and a maximum life sentence, along with a fine of up to $2 million, Higdon said. The statute is also known as the Len Bias Law, named for the first-team all-American basketball player at the University of Maryland who died of a cocaine overdose in June 1986, two days after he was the second overall pick by the Boston Celtics in the 1986 NBA draft.

A charge of second-degree murder might sound more imposing, but a conviction under the Len Bias Law usually results in a longer prison sentence, said Special Assistant U.S. Attorney Boz Zellinger.  Unlike in cases of second-degree murder, prosecutors do not have to prove malice, only that the victim’s death was caused by ingesting the drugs....

Higdon said the opioid crisis is a matter of life and death. The federal statute, he said, is needed to help combat a soaring epidemic that resulted in 60,000 drug overdoses across America last year.  He said 1,100 people died of overdoses last year in North Carolina, with three dying each day across the state.  “The death result law will be used more and more frequently,” Higdon said during a news conference Tuesday afternoon at the Terry Sanford Federal Building in downtown Raleigh.  “Our office, along with the entire U.S. Department of Justice, is determined to hold accountable those who deal these deadly drugs to enrich themselves. This prosecution is an example of that determination.”

U.S. Assistant Attorney Edward Gray said Walston first came to the attention of federal prosecutors after a member of a drug task force in Wilson reported a rise in heroin overdoses in the area.   In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area. The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year. On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said. The victim was at his brother’s home in Wilson....  Mollenahauer said she and her boyfriend left the home again at 1:30 a.m. When she returned at 5:30 a.m. she found the victim lying on the bathroom floor and not breathing. Emergency workers arrived and pronounced the man dead at 6:21 a.m., Higdon said.

Mollenhauer pleaded guilty to distribution of a quantity of heroin and aiding and abetting.  She was sentenced to nearly four years in prison.

Walston’s aunt, Emma Hardeman, a retired teacher who lives in Chicago, said Tuesday that her nephew is not the “big-time drug dealer” portrayed by federal prosecutors during his trial and at Tuesday’s press conference.  Hardeman said Walston was a former U.S. Air Force serviceman who suffered from post-traumatic stress syndrome after serving in Vietnam. She said her nephew was a longtime “functional addict” who sold drugs to support his own habit.

“He was a nickle-and-dime person,” she said. “He couldn’t even keep the lights and cable on. He didn’t have a $100,000 and a 100 pounds of heroin when they arrested him. He was a victim, too.” Hardeman said prosecutors should have held Mollenhauer more responsible.  She said Mollenhauer and her boyfriend returned to the victim’s home twice as he lay dying to take money from his wallet to buy more heroin.  Hardeman said family members have met with several federal lawyers and intend to appeal Walston’s sentence. “We are not going to lay down and let this die without fighting back,” she said. 

November 1, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Tuesday, October 31, 2017

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state judge: what sentence for autistic man whose first convictions resulted from years of fondling young girl?

Perhaps because we recently have been discussing mandatory minimum sentences for aggravated sexual offenses in my Criminal Law class, I was intrigued by this sentencing story out of the state courts in Kansas.  The piece is headlined "Judge to weigh input before sentencing child molester, including numerous letters supporting him," and here are the basics that set up the question in the title of this post:

In August a jury convicted James M. Fletcher, 35, of Lawrence, of five counts of aggravated indecent liberties with a child, for repeatedly fondling a girl over the course of more than two years, starting when she was 11. Under sentencing guidelines, even though he has no other criminal history, Fletcher faces up to life in prison with no possibility of parole for at least 25 years, plus lifetime registration and supervision if he were to be paroled.

Fletcher’s sentencing hearing was Monday, but a ruling was delayed until Nov. 9. Judge Peggy Kittel took under advisement a request from Fletcher’s attorneys to give him a lighter sentence than what the guidelines require. Kittel said she wanted time to weigh her decision “due to the length of sentence Mr. Fletcher is facing.”

His situation is unusual, Kittel said.  “What makes this case so hard is that Mr. Fletcher has no criminal history, yet is facing a lifetime sentence,” Kittel said.

The numerous letters of support from family, friends, neighbors and co-workers are “impressive,” Kittel said. Fletcher’s co-workers lauded him as a capable electrical engineer, intelligent and even “brilliant,” she said.  “And yet a jury found him guilty of betraying the trust of (the victim),” the judge said. “…He stands convicted of something, really, ethically and morally wrong.”

More than three dozen people attended Monday’s hearing.  That included the victim, who also testified at the trial, but most were supporters of Fletcher. None spoke, and neither did Fletcher other than yes and no answers to the judge, with his head otherwise bowed. Fletcher, who has been jailed since his conviction, appeared in shackles and inmate clothing. The judge did, through prosecutors, receive and read a letter from the victim with a picture that she drew, but the letter was not read aloud nor the picture displayed in court. The judge also referenced the many letters in Fletcher’s support that she received earlier.

Fletcher’s attorneys, Sarah Swain and Cooper Overstreet, emphasized his lack of criminal history, his strong support system — pointing to Fletcher’s wife, parents, relatives and friends in the audience — his model behavior while out on bond prior to his conviction and his proactivity in seeking counseling for what was described in trial as a sexual attraction to the teenage body type. “That’s a very rare thing,” Swain said. “These can only be positive steps, steps in the right direction.”

Swain also added that, prior to legislation known as Jessica’s Law, the crimes of which Fletcher was convicted would have carried a substantially lighter sentence. That law, in part, increased penalties for certain sex crimes against children. Defense attorneys requested a total sentence for Fletcher of two and a half years, or 29 and a half months on each count, running concurrently.

Prosecutor Mark Simpson said the defense's arguments were not compelling enough to depart from sentencing guidelines. In fact, Simpson said some of those same points made Fletcher’s crimes even worse. “She trusted him,” Simpson said of the victim. “He was able to have access to her in a way that she could not have been more vulnerable.”

A psychological evaluation of Fletcher concluded that he would not be able to “groom” a child because he had autism, Simpson said, but that diagnoses only came when Fletcher was 34 and seemed to contradict descriptions of him in the numerous letters of support. The same analysis concluded that Fletcher intellectualized and rationalized behavior, limiting the ability of any treatment to be effective, Simpson said.

Simpson said the crimes occurred in a house under the same roof as several of Fletcher’s relatives, who at one point even suggested that his “cuddling” was inappropriate. Simpson said Fletcher orchestrated the abuse in part by trying to convince the girl she was only dreaming it. “This was not one bad decision,” Simpson said. “This was ongoing — years of carefully planned abuse by the defendant.”

Prosecutors are requesting a sentence of life in prison for Fletcher.  Simpson said that if Fletcher were paroled after 25 years, he would have served the equivalent of five years of prison for each count. "That does not seem like an inappropriately long sentence to me," he said.

Fletcher was charged in Douglas County District Court in September 2015 with one count of aggravated indecent liberties with a child under 14, with four more counts added in May 2016.  Charges indicate Fletcher molested the girl from December 2012 through January 2015, when the victim was 13.  The victim told the jury that numerous times when she stayed at Fletcher’s house in Lawrence, he fondled her bare breasts under her T-shirt at night. She said sometimes she was awakened by the action but that she pretended to be asleep, and that afterward she felt “scared,” “confused” and initially passed off the encounters as dreams “to give myself a reason to not have to tell anybody.”

The girl said no one else saw the alleged molestation and that she never told anyone until February 2015, after a confrontation between Fletcher and her mother, where Fletcher told her mother he was sexually attracted to teens and worried he would develop an attraction to the girl.

This kind of case is the sort that, in my view, showcases why sentencing decision-making can be so challenging for judges and why modern mass incarceration in a consequences of so many choices by so many players in the criminal justice system.  As the article reveals, the severity of the sentence here appears to be the product of, inter alia, the legislature increasing punishments under Jessica's law, prosecutors bringing multiple charges, the defendant contesting those charges at trial, and the operation of state sentencing guidelines.  And still, it appears, the sentencing judge has authority to impose a sentence as low as only 2.5 years in prison or as long as a mandatory 25 years in prison.  If/when judges regularly max out sentences in these kinds of tough cases, prison populations will always be large.

This case also serves as a notable example of how many different ways one can characterize offense conduct and offender characteristics.  Is this case properly and usefully labelled a violent offense?  Is it properly and usefully labelled a first or a repeat offense?  Is this the worst kind of sex offense because of the age of the victim and the duration of the activity or would the label repeat child rape not fairly characterize the the criminal activity.  And is the defendant here clearly autistic?  Does that matter?  Is he at high risk to reoffend if he only serves 2.5 years in prison?  Might be be at higher risk to reoffend if he were sentenced to a longer prison term? 

October 31, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Tuesday, October 24, 2017

Many (but not all) Massachusetts DAs come out against eliminating certain drug mandatory minimums and other proposed reforms

This Boston Globe article, headlined "In harsh letter, DAs pan Senate’s criminal justice proposal," reports on a notable letter signed by most of the District Attorneys of Massachusetts to oppose a set of state criminal justice reform proposals. Here is the start of the article (which includes a link to the letter to legislators):

In a blistering public rebuke, nine of Massachusetts’ 11 district attorneys came out Monday against major parts of the state Senate’s sweeping criminal justice bill, which is aimed at reducing the number of people caught in the system.  In a six-page letter that comes days before the chamber is set to take up the legislation, top law enforcement officials railed against what is a Senate priority.

Although they praise some aspects of the bill, overall it “undermines the cause and pursuit of fair and equal justice for all, largely ignores the interests of victims of crime, and puts at risk the undeniable strides and unparalleled success of Massachusetts’ approach to public safety and criminal justice for at least the last 25 years,” the DAs wrote.

The letter also marks a break among the top prosecutors, with the signatures of Northwestern District Attorney David E. Sullivan and Middlesex District Attorney Marian T. Ryan — who is the chief law enforcement official of the state’s most populous county — notably absent.

The nine DAs are against eliminating mandatory minimum sentences for certain drug crimes such as trafficking up to 100 grams of cocaine — one proposal in the legislation scheduled for a Thursday vote in the Senate. And they expressed particularly vociferous opposition to the part of the bill that would make those changes retroactive, allowing hundreds of drug dealers the opportunity to get out of prison early.   “Where exactly are the residents eager for violent drug traffickers to be returned to their neighborhoods?” they wrote. 

Advocates and senators say mandatory minimums are a failed tactic from the war on drugs, one that has unnecessarily ensnared generations of people, particularly from communities of color, in the criminal justice system. And making the repeal of certain drug mandatory minimums retroactive is important for equity, they say.

The DAs energetically oppose the provision that would raise the age of criminal majority to 19, meaning all but the most serious offenses committed by 18-year-olds would likely be adjudicated confidentially in front of a juvenile court judge.

Advocates and Senate leaders say scientific research shows young people’s brains keep maturing into their 20s, and it is appropriate for the law to acknowledge that evolution. They say it’s just common sense to treat all high school kids the same way, instead of punishing an 18-year-old much more harshly than a 17-year-old for the same crime.

But the DAs wrote that “adopting a law that enables anyone to declare that ‘I am not responsible for my actions, my brain is!’ is something no rational parent would accept, and creates a slippery slope.”

The DAs vehemently oppose rewriting the state’s statutory rape law, which currently makes sex with anyone under 16 against the law. The bill would legalize consensual sex between teens close in age — an 18-year-old and a 15-year-old, or a 15-year-old and a 13-year-old, for example. That provision is “both unnecessary and dangerous, especially to girls and young women,” the nine DAs wrote.  But advocates say a so-called Romeo-and-Juliet law is sensible, and criminalizing the sexual contact young people inevitably have with each other is not the best way to respond to it.

October 24, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, October 23, 2017

New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation

This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State.  Here are the details as reported by the AP:

A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black.  The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent.  When the victim is black, the chances are 6 percent lower.

“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.

Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.

The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...

Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic.  Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.

In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.

Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths."  Here is how it starts:

A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.

“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”

The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”

October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Thursday, October 19, 2017

"Women’s Mass Incarceration: The Whole Pie 2017"

Women_pie_2017The title of this post is the title of this great new report authored by Aleks Kajstura and released by the Prison Policy Initiative jointly with the ACLU’s Campaign for Smart Justice. In the tradition of other great "whole pie" efforts (see, e.g., here), this latest report details the number of women who are locked up by various correctional systems and why.  Here is part of the text of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control.  Since 2014, the Prison Policy Initiative has quantified the number of people incarcerated in the United States, and calculated the breakdown of people held by each correctional system by offense in an annual Whole Pie: Mass Incarceration report.  This report, done in collaboration with the ACLU’s Campaign for Smart Justice, finally provides similar data on women incarcerated in the Unites States....

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are nearly evenly split between state prisons and local jails.

The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger picture of men’s incarceration. The disaggregated numbers presented here are an important first step to ensuring that women are not left behind in the effort to end mass incarceration.

A staggering number of women who are incarcerated are not even convicted: more than a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women in jail have not been convicted of a crime and are awaiting trial.

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  A previous study found that women who could not make bail had an annual median income of just $11,071.  And among those women, Black women had a median annual income of only $9,083 (just 20% that of a white non-incarcerated man). When the typical $10,000 bail amounts to a full year’s income, it’s no wonder that women are stuck in jail awaiting trial.

Even once convicted, the system funnels women into jails: About a quarter of convicted incarcerated women are held in jails, compared to about 10% of all people incarcerated with a conviction.

So what does it mean that large numbers of women are held in jail - for them, and for their families? While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted - some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women.  Women in jails are also more likely to suffer from mental health problems and experience serious psychological distress than either women in prisons or men in either correctional setting.

The numbers revealed by this report enable a national conversation about the policies that impact incarcerated women held in various facilities, and also serve as the foundation for discussions to change the policies that lead to incarcerating women in the first place.  All too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses, including violent offenses that account for roughly a quarter of all incarcerated women, must be considered in the effort to reduce the number of incarcerated women in this country.  This new data on women underlines the need for reform discussions to focus not just on the easier choices but on choices that can lead to impactful policy changes.

October 19, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, October 17, 2017

You be the Army judge: what sentence for Army deserter Bowe Bergdahl?

The question in the title of this post is prompted by this new AP article headlined "Bergdahl guilty pleas leave room for drama at sentencing." Here is the context for the question:

Army Sgt. Bowe Bergdahl's guilty plea to charges of endangering comrades in Afghanistan has set up a dramatic sentencing hearing that could land him in prison for life.  Bergdahl, who was captured and held by the Taliban for five years after leaving his remote post in Afghanistan in 2009, pleaded guilty Monday in North Carolina to desertion and misbehavior before the enemy, a rare charge that carries a potential life sentence.

Because Bergdahl had no plea deal with prosecutors, his punishment will be decided by the judge, Army Col. Jeffery R. Nance, at a hearing starting Oct. 23.  Bergdahl was thoroughly questioned by Nance at his plea hearing at Fort Bragg, and the soldier acknowledged that his actions — and subsequent military search missions — put fellow service members in harm's way. "I left my fellow platoon mates," he told the judge. "That's very inexcusable."

At sentencing, the judge is expected to weigh factors including Bergdahl's willingness to accept responsibility by pleading guilty, his time in captivity of the Taliban and its allies, and serious wounds to service members who searched for him.  "Pleading guilty before a judge without any protection from a deal is a risky move," said Eric Carpenter, a former Army lawyer who teaches law at Florida International University. "The military judge can sentence Bergdahl to zero punishment, but he can also sentence Bergdahl to life in prison."

The guilty plea brings the highly politicized saga closer to an end eight years after Bergdahl vanished. President Barack Obama brought him home in 2014 in a swap for five Taliban prisoners at Guantanamo Bay, saying the U.S. does not leave its service members on the battlefield. Republicans roundly criticized Obama, and Donald Trump went further while campaigning for president, repeatedly calling Bergdahl a "dirty, rotten traitor" who deserved to be executed by firing squad or thrown out of a plane without a parachute.

Bergdahl, 31, has said he walked away from his remote post in 2009 with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit. "At the time, I had no intention of causing search-and-recovery operations," he said in court. "I believed they would notice me missing, but I didn't believe they would have reason to search for one private."...

Bergdahl's responses to the judge Monday were some of his most extensive public comments yet. He said he tried to escape from his captors 12 to 15 times, with varying degrees of success.  Once, he was on his own for about a week — hoping U.S. drones would spot him — before he was recaptured.  He said he also tried to escape on his first day in captivity. "As I started running there came shouts, and I was tackled by people. That didn't go so well," said Bergdahl, who spoke in even tones and wore a blue dress uniform.

Meanwhile, Bergdahl's fellow service members engaged in firefights that they could have avoided had Bergdahl not gone absent without leave, the judge said.  Those firefights left a Navy SEAL with a career-ending leg wound and an Army National Guard sergeant with a head wound that put him in a wheelchair.

As for the defense contention that Trump unfairly biased the court-martial against Bergdahl, a ruling in February found that the new president's comments were "disturbing and disappointing" but did not constitute unlawful influence by the soon-to-be commander in chief.

October 17, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (14)

Sunday, October 15, 2017

"Why kids don’t belong on sex offender registry"

The title of this post is the headline of this recent op-ed authored by Nicole Pittman. Here is how it starts:

California took an important step toward ending the abusive practice of putting kids on sex offender registries when Gov. Jerry Brown signed Senate Bill 384, which allows juveniles to petition for their removal after five or 10 years.

When California became the first state to register children as sex offenders in 1986, there was little known about children who commit sexual offenses. At that time, treating them the same as adults seemed sensible. Today, we have research that tells us that putting them on registries does not prevent future child sexual abuse and can diminish public safety.

Roughly 200,000 people on sex offender registries — including more than 3,500 in California — went on as kids, some for serious crimes but many others for playing doctor, streaking or teenage romances.

Sex offender registration laws stigmatize and isolate the very children they were meant to protect, ensuring their youthful indiscretions follow them into adulthood. Names, photos, and addresses are often made public, leading to vigilante violence, stigmatization, and severe psychological harm. One in five attempt suicide; too many succeed. There’s also now a strong body of evidence demonstrating that very few youth commit more sexual crimes.

October 15, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Wednesday, October 11, 2017

"Justice for Veterans: Does Theory Matter?"

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

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.  These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service.  A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

October 11, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Could poor health help save the live of Ohio's "poster child for the death penalty”?

The question in the title of this post is prompted by this Columbus Dispatch article headlined "Ohio killer says he’s too ill to be put to death."  Here are excerpts:

Death-row inmate Alva Campbell, once dubbed “the poster child for the death penalty” for a deadly carjacking outside the Franklin County Courthouse 20 years ago, is now too sick to be put to death, his attorneys and advocates say.

The convicted killer is slated for execution Nov. 15, but Campbell has so much fluid in his lungs that he can’t lie flat on the execution table for a lethal injection, one of his attorneys, David Stebbins, said Tuesday. “He’ll start gasping and choking,” Stebbins said. Stebbins said that for Campbell to sleep in prison, “he has to prop himself up on his side. It’s not very good.”

Stebbins said he has communicated his concerns to the Ohio Department of Rehabilitation and Correction, which didn’t immediately respond to questions about how to deal with Campbell’s condition.

Campbell, 69, has twice been convicted of murder, most recently in the 1997 execution-style slaying of 18-year-old Charles Dials behind a K-Mart store on South High Street.

Long before that, Campbell had cardiopulmonary issues that in the past few years have become debilitating, his attorneys say. Most of his right lung has been removed, and he has emphysema, chronic obstructive pulmonary disease and possibly cancer in much of his remaining lung tissue, Campbell’s application for executive clemency says. In addition, his prostate gland has been removed, as has a gangrenous colon. A broken hip last year has confined him to a walker. “The severity of these combined illnesses have left Alva debilitated and fragile,” Campbell’s clemency application says. “Alva’s deteriorating physical condition further militates in favor of clemency.”

The health claims are only one reason why Campbell and his attorneys are asking that his sentence be commuted to life in prison without parole. They also cite the “nightmare” childhood that Campbell suffered at the hands of an alcoholic father who was both physically and sexually abusive.

If Gov. John Kasich doesn’t want to commute Campbell’s sentence, delaying his sentence would have the same effect because the inmate will die soon, advocates said. “He’s probably in the poorest health of any living death-row inmate in the country,” said Kevin Werner of Ohioans to Stop Executions....

Campbell is scheduled for a clemency hearing Thursday. A spokesman for Ohio Attorney General Mike DeWine said that, in advance of the hearing, his office will file a response rebutting the claims made in Campbell’s application.

Campbell argues that poor health is one reason he shouldn’t be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

Franklin County Prosecutor Ron O’Brien, who at the time of Campbell’s trial called him “the poster child for the death penalty,” couldn’t be reached Tuesday for comment.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, October 09, 2017

"Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability"

The title of this post is the title of this notable new paper authored by Christopher Slobogin. Even more than the title, the paper's abstract suggests it is a must-read for sentencing fans:

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy.  At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein.  It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.  It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 9, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, October 06, 2017

"Access to Health Care and Criminal Behavior: Short-Run Evidence from the ACA Medicaid Expansions"

The title of this post is the title of this notable new empirical paper available via SSRN authored by Jacob Vogler. Here is the abstract:

I investigate the causal relationship between access to health care and criminal behavior following state decisions to expand Medicaid coverage after the Affordable Care Act. Many of the newly eligible individuals for Medicaid-provided health insurance are adults at high risk for crime.  I leverage variation in both insurance eligibility generated by state decisions to expand Medicaid and county-level treatment intensity measured by changes in insurance rates.

My findings indicate that the Medicaid expansions have resulted in significant decreases in annual rates of reported crime, including both property and violent crime, by between 3 to 5 percent per 100,000 people.  A within-state heterogeneity analysis suggests that crime impacts are more pronounced in counties that experienced larger gains in insurance rates among individuals newly eligible for Medicaid coverage.  The estimated decrease in reported crime amounts to an annual cost savings of nearly $400 million.

October 6, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (15)

Thursday, October 05, 2017

Notable new series in Teen Vogue on youth incarceration

I have to admit that I am not a regular reader of Teen Vogue, no doubt in part because it has been a long time since I have been either a teen or in any way vogue. But I may become a regular reader if the magazine keeps covering the issues of juvenile incarceration, as it has been doing in this "Kids Incarcerated" series of article:

October 5, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Tuesday, October 03, 2017

"Most Women in Prison Are Victims of Domestic Violence. That's Nothing New."

The title of this post is the title of this new Time commentary authored by history Prof Karen Cox. Here are excerpts:

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years — and rightly so — there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.... [T]hanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant.  In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household....

Nationally, as the Vera Institute Report shows, the overwhelming majority of female prisoners are held for nonviolent offenses and most are women of color. Among them, 86% are victims of sexual violence.

The difficulties faced by female prisoners are now attracting the attention of politicians.  On July 11 of this year, Sen. Cory Booker (D-NJ) introduced the Dignity for Incarcerated Women Act, or the “Dignity Act,” on behalf of himself and Sens. Kamala Harris, Elizabeth Warren and Richard Durbin. The bill aims “To improve the treatment of Federal prisoners who are primary caretaker parents.” To that end, the Dignity Act calls for a more generous visitation policy for incarcerated mothers.  If passed, it would also prevent restraining pregnant women by shackling them or placing them in strait jackets, among other forms of restraint.  Prisons would provide parenting classes and trauma-informed care for those who need it, as well as make basic healthcare products like tampons available.  Gynecological care would also be mandatory.

Since July, the Dignity Act has only advanced as far as the Senate Judiciary Committee where no further action has been taken. Given the stark realities of life for incarcerated women, action cannot come soon enough. Our nation can and should do better than to allow Jim Crow-like prison policies to continue unchecked.

October 3, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3)

Friday, September 29, 2017

Another look at the realities of more offenders aging and dying in prison

Long-time readers surely recall a number of articles in this space about the aging US prison population. Here is another via the Philadelphia Inquirer under the headline "More people than ever are dying in prison. Their caregivers? Other inmates."  Here is how it gets started:

“The death squad.” Or, “the executioners.” That’s what many inmates used to call the inmate-volunteers who work the Graterford state prison hospice unit, a bleak row of isolation rooms — each one-part hospital room, one-part jail cell— where inmates with terminal illnesses are placed to die.

Then, they saw how the inmates cared for dying men in shifts, undertaking the intimate tasks of feeding, cleaning and comforting them. For many, it is a calling. Over time, attitudes changed, said James, a 51-year-old inmate who volunteers to do this work. “There’s a lot of progress in this place. There is more humanity here now.”

It’s needed, given that far more people are dying in prison than ever before. In Pennsylvania, 483 state inmates have died since January 2015. That’s about 180 deaths in prison each year. From 2005 to 2014, the average was 150 deaths per year.

That increase is a byproduct, officials say, of the extraordinarily fast-growing elderly population in prison. In 2001, there were 1,892 geriatric inmates in Pennsylvania (ages 55 or older). Today, that’s more than tripled to 6,458. The leading causes of death in the state’s prisons are heart disease, cancer and liver disease. Caring for this population is extraordinarily expensive: It’s estimated that elderly inmates cost three to nine times more than young ones. Compassionate release, meanwhile, is granted to just a few inmates each year.

But since 2004, families of dying inmates at Graterford have had the small comfort of knowing they will not die alone. There is just one nurse on staff at the 23-bed infirmary, and visitors are allowed only an hour a day, but volunteers man the hospice on 24-hour vigils, sometimes caring for two or three inmates at once.

A year ago, a statewide memo ordered that all Pennsylvania prisons establish hospice programs, but there’s no set format for those programs to follow, said Annette Kowalewski, who runs the hospice program at Laurel Highlands state prison, which contains a skilled-nursing facility. Staff at five or six institutions have contacted her for guidance.

According to Brie Williams, a professor at University of California-San Francisco who studies geriatric care in prison, some type of hospice care is offered at around 80 prisons nationwide. “Hospices in the correctional setting are a critically needed response to the extraordinarily long sentences and minimum mandatory sentences that were handed down over the past decades,” she said.

September 29, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, September 28, 2017

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, September 26, 2017

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 25, 2017

Anthony Weiner given 21 months in federal prison after his plea to "transferring obscene material to a minor"

Anthony Weiner was scheduled to be sentenced at 10am this morning in the Southern District of New York federal courtroom, and apparently US District Judge Denise Cote did not need very long to figure out what sentence she thought fitting.  This AP piece provides a blow-by-blow, and here are excerpts:

A prosecutor has urged a judge in New York City to sentence Anthony Weiner to a significant prison sentence to end his “tragic cycle” of sexting.

Assistant U.S. Attorney Amanda Kramer told a Manhattan federal court judge Tuesday that Weiner on three occasions in 2016 asked a 15-year-old girl to display her naked body online and to perform for him. The prosecutor noted that sexting had already ruined Weiner’s congressional career and spoiled his run for mayor of New York City before he began interacting with the teenager. Kramer said Weiner should go to prison for between 21 months and 27 months....

Anthony Weiner called his crime his “rock bottom” as he spoke just before a judge in New York City sentences him for his sexting crime. Weiner fought back tears and occasionally cried Monday as he read from a written statement on a page he held in front of him in Manhattan federal court. He said he was “a very sick man for a very long time.” He asked to be spared from prison.

The Democrat’s lawyer, Arlo Devlin-Brown, had asked that Weiner serve no prison time....

Anthony Weiner has been sentenced to 21 months in prison for sexting with a 15-year-old girl in a case that may have cost Hillary Clinton’s the presidency.... Anthony Weiner must report to prison by Nov. 6 to begin serving his 21-month sentence for sexting with a 15-year-old girl.

As his sentence was announced Monday, the former Democratic congressman from New York dropped his head into his hand and wept, then stared straight ahead.  After the hearing ended and Judge Denise Cote left the bench, he sat in his seat for several minutes, continuing to cry.  Weiner was also fined $10,000.  After his sentence is served, he must undergo internet monitoring and must have no contact with his victim. He must also enroll in a sex-offender treatment program.  

Before announcing the sentence, Cote said there was “no evidence of deviant interest in teenagers or minors” on Weiner’s part.  She also said he is finally receiving effective treatment for what she said has been described as “sexual hyperactivity.”

 Prior related posts:

September 25, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)