Monday, November 09, 2015

New research suggests overcrowding in California prisons increased post-release parole violations

Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform.  In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates.    The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:

Objective

This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).

Background

Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.

Methods

Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....

Conclusions

Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.

November 9, 2015 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (8)

Connecticut Gov calls for older teens to be treated as juves in state criminal justice system

As effectively reported in this local article, headlined "Malloy: Raise the age for juvenile justice system to 20," Connecticut's Governor Dan Malloy delivered a significant criminal justice policy speech on Friday focused on bail reform and juvenile justice. Here are some details:

"I would like to begin a statewide conversation about raising the age of eligibility for our juvenile justice system and considering how we think about our young offenders," Malloy said at the University of Connecticut School of Law in Hartford.  "Let's consider this: age within our laws and criminal justice system is largely arbitrary…You can commit a nonviolent offense at 17 without a criminal record, but if you're 18 and you commit the same crime, it lasts a lifetime."

Malloy also would overhaul the bail system, always a politically fraught undertaking at the General Assembly, with the intention of ensuring that no one is jailed for want of a minimal bail, a change that one policy analyst said could shrink the state's jail population by up to 1,000 inmates.

He was the keynote speaker at an all-day symposium sponsored by the Connecticut Law Review.  His audience included judges, prosecutors and the commissioner of correction, Scott Semple.

Malloy, a Democrat who won bipartisan passage earlier this year for a Second Chance Society initiative aimed at reducing incarceration for non-violent crimes, proposed that the records of those under 25 who commit less severe offenses be shielded from public disclosure and possibly expunged.

Malloy said such a change would "wipe the slate clean" for low-risk offenders that have not matured entirely.  "Is it right that that 17 year-old can have a second chance but a 22 year-old cannot? This is the question that we should collectively answer," Malloy said.  He intends to propose a package of reforms to the General Assembly for its 2016 session, which convenes in February.

The changes Malloy proposed would make Connecticut the first state in the nation to raise the age for its juvenile justice system past 18....  He said one inspiration for the idea came on a trip with Semple to Germany, where offenders are treated as juvenile up to age 20.

“This is uncharted territory in terms of going that far," said David McGuire, the legislative and policy director for the American Civil Liberties Union of Connecticut.  "It makes a lot of sense. It will save a lot of lives. It will really impact an entire generation."

In 2007, state lawmakers changed state law so that 16- and 17-year-olds charged with less serious offenses enter the juvenile justice system, where they are often provided with a range of community-based supports, rather than automatically being sent to the adult court system.  A study commissioned by the state before the age was raised to 18 found that up to 75 percent of teenagers sent to the adult system were receiving no rehabilitative services.  And the services other teens received were subpar, according to the study.

Malloy said the current age is still too low.  "It's time to think about changing the artificial barriers that we imposed. It's time that we get it right.  For that reason we need to take a different approach for these young adults between the ages of 18 and 24," Malloy said, pointing out that many of these young offenders are victims of trauma.

November 9, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, November 05, 2015

US Sentencing Commission hearing about how to fix Johnson problems in sentencing guidelines

As this webpage reports, this morning the US Sentencing Commission is holding a public hearing in Washington, DC "to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines."  This hearing is being live-streamed here, and this hearing agenda now has links to all the scheduled witnesses' written testimony.

Helpfully, the start of this written testimony from the first witness, Judge Irene Keeley, Chair, Committee on Criminal Law of the Judicial Conference of the United States, provide a useful overview of what the USSC is working on:

On behalf of the Criminal Law Committee of the Judicial Conference of the United States, I thank the Sentencing Commission for providing us the opportunity to comment on proposed changes to the sentencing guidelines definitions of “crime of violence” and related issues.  The topic of today’s hearing is important to the Judicial Conference and judges throughout the nation.  We applaud the Commission for undertaking its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction and the impact of such definitions on the relevant statutory and guideline provisions. We also thank the Commission for considering whether to promulgate these guideline amendments to address questions that have been or may be raised by the Supreme Court’s recent opinion in Johnson v. United States, 135 S. Ct. 2551 (2015).

The Judicial Conference has authorized the Criminal Law Committee to act with regard to submission from time to time to the Sentencing Commission of proposed amendments to the sentencing guidelines, including proposals that would increase the flexibility of the guidelines.  The Judicial Conference has also resolved “that the federal judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable, and flexible.”

As I discuss below, the Criminal Law Committee is generally in favor of the Commission’s proposed amendments, particularly those intended to address or anticipate questions raised by Johnson.  As you know, the definition of the term “crime of violence” for purposes of the career offender guideline has been the subject of substantial litigation in the federal courts.  We support any efforts to resolve ambiguity and simplify the legal approaches required by Supreme Court jurisprudence.  Additionally, our Committee has repeatedly urged the Commission to resolve circuit conflicts in order to avoid unnecessary litigation and to eliminate unwarranted disparity in application of the guidelines.  The Commission’s proposed amendment would reduce uncertainty raised by the opinion while making the guidelines more clear and workable.  

With regard to the proposed guideline amendments concerning issues unrelated to Johnson, the Committee generally supports or defers to the Commission’s recommendations.  The Committee opposes amending, however, the current definition of “felony” in the career offender guideline. Finally, the Committee supports revising other guidelines to conform to the definitions used in the career offender guideline to reduce complexity and make the guidelines system more simple and workable. 

November 5, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, October 30, 2015

"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"

The title of this post is the title of this intriguing new paper authored by Robert M. Sanger and available via Bepress.  Here is the abstract:

In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.  In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled.  Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.

Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty.  This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race.  The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.  Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform.  Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.

Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes.  This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation.  Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death.  Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.

October 30, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Thursday, October 29, 2015

Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?

The question in this post is prompted by this lengthy new Politico article headlined "Hastert's sweet deal: Lawyers question whether federal prosecutors are following guidelines." Here are excerpts:

House Speaker Dennis Hastert’s guilty plea in a hush-money case has some lawyers asking whether the former speaker is getting a sweetheart deal.

At a court hearing in Chicago Wednesday, the prosecution and defense unveiled Hastert’s plea bargain under which he admitted to a felony charge of structuring $952,000 into 106 separate bank withdrawals to avoid federal reporting requirements. The two sides agreed that sentencing guidelines call for Hastert to receive between zero and six months in jail.

But legal experts say those guidelines arguably call for a much longer sentence—closer to two to three years or more, including a potential enhancement for obstruction of justice. And some lawyers say they’re baffled that prosecutors would buy into a calculation that opens the door to Hastert getting a sentence of probation. “It seems like a sweet deal,” University of Richmond law professor Carl Tobias said. “It’s just hard to understand.”

The indictment in the case also charged Hastert with lying to the FBI about what he did with the money, concealing that he paid it to a longtime associate in an effort to hide past misconduct. In the plea deal, Hastert admitted to misleading the FBI, but prosecutors agreed to drop the false statement charge....

The agreement between prosecutors and Hastert’s defense that the zero-to-six-month sentencing range is applicable to his case is not the end of the matter. A probation officer will also calculate the range and could disagree with the parties. Durkin will ultimately decide what the guidelines call for. Under the plea deal, Hastert retains the right to appeal the sentence to the 7th Circuit.

Under a 2005 Supreme Court decision, the judge is required to consult the guidelines but he can impose a more or less severe sentence. Experts in structuring cases say judges often sentence below the guidelines, especially in so-called “clean money” cases where the government does not allege that the funds were the product of illegal activity like drug dealing or were being used to avoid taxes.

"The sentencing guidelines for clean-source money cases are totally out of whack," the ex-prosecutor said. "It's insane to sentence someone for a purely regulatory violation as severely if not more severely than someone who defrauded someone out of $952,000. Having said that, there are a good measure of bad acts here, so maybe there would be some rough justice in it."

Prosecutors have alleged that Hastert paid the $952,000 in illegally structured withdrawals to a longtime associate because of Hastert’s past misconduct against that person, identified in court filings only as “Individual A.” Sources have alleged the behavior involved sexual contact with a male student while Hastert was a coach and high school teacher several decades ago, but the indictment does not mention any sexual aspect to the charges.

Experts say Hastert could not be charged or sued today over such acts years ago because the relevant statutes of limitations have expired. Lawyers say a key factor in Hastert's ultimate sentence could be whether Durkin decides Hastert's underlying misconduct is relevant for the purpose of sentencing on the bank reporting charge.

Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.

"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."

October 29, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

"The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime"

The title of this post is the title of this notable new essay by Elizabeth Joh and Thomas Joo available via SSRN. Here is the abstract:

Volkswagen, the world’s largest auto maker, acknowledged in September 2015 that it had equipped its cars with software designed to cheat diesel emissions tests.  The VW scandal may become the first major test of the Department of Justice’s recently announced guidelines that focus on individual accountability in white collar criminal investigations. Criminal investigations into safety defects at two other leading car makers, General Motors and Toyota, yielded no criminal charges against any individuals.

But in a recent speech announcing the new guidelines, Deputy Attorney General Sally Yates stated, “Crime is crime,” whether it takes place “on the street corner or in the boardroom.” “The rules have just changed.”  We raise questions about this new approach and some of its possible implications.  The new cooperation policy’s emphasis on individual prosecutions could itself result in leniency: prosecutors may award excessively generous credit to corporations in order to build cases against individuals.

October 29, 2015 in Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, October 21, 2015

"Separation by Bars and Miles: Visitation in state prisons"

SeparationByBarsAndMiles_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This press release about the report provides this overview:

Less than a third of people in state prison receive a visit from a loved one in a typical month [according to] a new report by the Prison Policy Initiative, Separation by Bars and Miles: Visitation in state prisons. The report finds that distance from home is a strong predictor for whether an incarcerated person receives a visit.

“For far too long, the national data on prison visits has been limited to incarcerated parents. We use extensive yet under-used Bureau of Justice Statistics data to shed light on the prison experience for all incarcerated people, finding that prisons are lonely places,” said co-author Bernadette Rabuy, who recently used the same BJS dataset for Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned.

Separation by Bars and Miles finds that most people in state prison are locked up over 100 miles from their families and that, unsurprisingly, these great distances — as well as the time and expense required to overcome them — actively discourage family visits. Given the obvious reluctance of state prison systems to move their facilities, the report offers six correctional policy recommendations that states can implement to protect and enhance family ties. Rabuy explained, “At this moment, as policymakers are starting to understand that millions of families are victims of mass incarceration, I hope this report gives policymakers more reasons to change the course of correctional history.”

October 21, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (12)

Tuesday, October 20, 2015

"Dismantling the School-to-Prison Pipeline: Tools for Change"

The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.

This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color.  But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement.  Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline.  The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Saturday, October 17, 2015

Remarkable Fusion series on "Prison Kids"

Pk_bannerThe multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:  

October 17, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Thursday, October 15, 2015

New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline

In this post just a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is part of the guideline definition of a career offender.  And a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But, as noted in this post a few weeks ago, an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (11th Cir. Sept. 21, 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, and thanks to Carissa Hessick and David Markus, I have now been able to play a role in explaining to the full Eleventh Circuit just why.  Specifically, Carissa primarily drafted and I primarily tweaked an amicus brief that David helped finalize and file today urging en banc review in Matchett.  The full brief can be downloaded via SSRN, and here is how it gets started:

The U.S. Sentencing Guidelines dramatically increase a defendant’s sentencing range if she has at least two prior convictions for a “crime of violence,” which U.S.S.G. § 4B1.2(a)(2) defines to include crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.”  As the panel in this case acknowledged, that definition is identical to the definition in 18 U.S.C. § 924(e)(2)(B), which the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), found to be unconstitutionally vague in violation of the Due Process Clause.

Nevertheless, the panel in this case held that § 4B1.2(a)(2) is not unconstitutionally vague, reasoning that the vagueness doctrine does not apply to the now-advisory Sentencing Guidelines.  That conclusion is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines.  The panel’s decision also upsets the careful balance that the Supreme Court has struck between uniformity and discretion in federal sentencing after United States v. Booker, 543 U.S. 220 (2005).  Finally, the panel decision fails to appreciate that it faced a unique situation in which a Guideline contains language identical to a federal statute declared void for vagueness by the Supreme Court.  Both the narrow basis for that decision, as well as ordinary Commission practice of reviewing and revising the Sentencing Guidelines, ensure that few Guidelines will become susceptible to serious vagueness challenges.  This Court accordingly should grant en banc review.

October 15, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, October 11, 2015

"Number of Older Prisoners Grows Rapidly, Threatening to Drive Up Prison Health Costs"

StatelineAgingPrisonersLineGraphThe title of this post is the title of this informative Stateline posting from The Pew Charitable Trusts.  Here are the primary passages: 

In a year when the nation’s overall prison population dropped, the number of older inmates grew rapidly in 2014, continuing a trend that translates into higher federal and state prison health care spending....

In 1999, inmates age 55 and above — a common definition of older prisoners — represented just 3 percent of the total population.  By 2014, that share had grown to 10 percent.

Like senior citizens outside prison walls, older inmates are more likely to experience dementia, impaired mobility, and loss of hearing and vision, among other conditions.  In prisons, these ailments present special challenges and can necessitate increased staffing levels and enhanced officer training, as inmates may have difficulty complying with orders from correctional officers.  They can also require structural accessibility adaptions, such as special housing and wheelchair ramps.  For example, in Florida, four facilities serve relatively large populations of older inmates.  These units help meet special needs, such as palliative and long-term care.

Additionally, older inmates are more susceptible than the rest of the prison population to costly chronic medical conditions.  In 2011-12, for example, 73 percent of state and federal prisoners age 50 years or older reported to the Bureau of Justice Statistics that they had experienced a chronic medical condition such as hypertension, arthritis, asthma, or diabetes, among others.  Younger inmates age 18 to 24 (28 percent) or 25 to 34 (41 percent) were much less likely to have reported such a condition.

All of these challenges create additional health and non-health expenses for prisons, which are constitutionally required to provide adequate medical attention and respond to the unique needs of these inmates.

The National Institute of Corrections pegged the annual cost of incarcerating prisoners 55 and older with chronic and terminal illnesses at, on average, two to three times that of the expense for all other inmates.  More recently, other researchers have found that the cost differential may be wider.

In May, the Department of Justice’s inspector general found that within the Federal Bureau of Prisons, institutions with the highest percentages of aging inmates spent five times more per inmate on medical care — and 14 times more per inmate on medication — than institutions with the lowest percentage of aging inmates.

A few (of many) recent and older related posts:

October 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, October 07, 2015

"Why 21 year-old offenders should be tried in family court"

The title of this post is the headline of this notable Washington Post commentary authored by Vincent Schiraldi and Bruce Western. Here are excerpts:

Just over 100 years ago, there was no separate court for juveniles anywhere in the world. Adolescents were viewed as smaller versions of adults, were prosecuted under the same laws and often sent to the same prisons.

But in 1899, a pioneering group of women — Jane Addams, Lucy Flower and Julia Lathrop — persuaded the state of Illinois to create a separate court to handle juveniles’ cases individually, be more rehabilitative and less punitive and ensure that youthful mistakes wouldn’t haunt youngsters throughout their lives.  The family court was a smashing success, spreading to 46 states and 16 countries by 1925 and decidedly reducing recidivism compared with trying children as adults.

But while family court’s founding mothers got a lot right, the setting of 18 as the court’s maximum age was an arbitrary choice based on the mores of the time rather than hard evidence. It’s time we expanded the protections and rehabilitative benefits of the family court to young adults.

Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways. They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Furthermore, adolescence itself has become elongated compared with that of previous generations. Today’s young people finish college, find jobs, get married and leave home much later than their parents did. Just 9 percent of young adults were married in 2010, compared with 45 percent in 1960.

Non-criminal law and practice frequently recognize these developmental differences. States prohibit young adults from smoking cigarettes, consuming alcohol, possessing firearms, gambling and adopting children. You can’t serve in the House of Representatives until age 25, it costs more to rent a car as a young adult and you can stay on your parents’ health insurance until 26. However, despite the developmental differences between young and fully mature adults, criminal law draws a stark, scientifically indefensible line at 18. This has disastrous public safety outcomes. For example, 78 percent of 18- to 24-year-olds released from prison are rearrested and about half return to prison within three years, the highest recidivism rate of any age cohort.

Fortunately, there has been growing innovation overseas along with some noteworthy U.S. experiments designed to address the challenges and opportunities this transition-aged population presents. The age of family court jurisdiction in Germany and the Netherlands is 21 and 23, respectively. Many European countries have separate correctional facilities for young adults. In Finland, young people can earn accelerated release from prison by participating in educational and professional training programs....

Attorney General Loretta E. Lynch recently convened an expert panel to explore developmentally appropriate responses to young adults caught up in the justice system. “Research indicates that . . . we may have a significant opportunity, even after the teenage years, to exert a positive influence and reduce future criminality through appropriate interventions,” she said. This “offers a chance to consider new and innovative ways to augment our criminal justice approach.”

Such thinking will undoubtedly face political head winds in some places, but improved outcomes can be used to build support with the public. Frequently, U.S. juvenile justice practice moves adolescents in the opposite direction — from family court into adult court and, too often, adult prisons. An estimated 247,000 people under 18 were tried as adults in 2007, and more than 5,000 adolescents are incarcerated in jails and prisons. There, they are at greater risk of sexual assault and experience higher rearrest rates vs. youth retained in the juvenile justice system. Any reforms for young adults need to also reduce this destructive practice of transferring young people into the maw of the adult system.

Given advances in research and successful innovation here and abroad, now is the time for practice to catch up with science — whether it is raising the family court’s age to 21 or 25 or otherwise creating a separate approach to young adults that reflects their developmental needs and furthers public safety.

October 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Tuesday, October 06, 2015

"Man 'too high' on marijuana calls Austintown police for help"

The title of this post is the headline of this (amusing?) article from a local Ohio paper that almost reads like a story from The Onion.  Here are the details:

Township police were called to a home Friday night by a man who complained he was “too high” after smoking marijuana. According to a police report, authorities were called to the 100 block of Westminister Avenue at about 5:20 p.m. Friday by a 22-year old male who had smoked the drug.

The officer who responded to the home could hear the man groaning from a room.The officer then found the man lying “on the floor in the fetal position” and “was surrounded by a plethora of Doritos, Pepperidge Farm Goldfish and Chips Ahoy cookies,” the report said. The man also told police he couldn’t feel his hands.

A glass pipe with marijuana residue, two packs of rolling papers, two roaches and a glass jar of marijuana were recovered from the man’s car after he gave the keys to police.

The man declined medical treatment at the home Friday night.  Austintown police have not charged the man in the incident as of late Monday morning.

I am tempted to react to this story by wondering aloud if the cop-calling, worried-weed consumer has twice enjoyed (white?) privilege by (1) thinking he could seek help from the police for his pot problem, and (2) for not yet getting arrested or charged for his various crimes. But rather than turn this story serious, I will instead just request that readers help me imagine funnier headlines for this tale of foolishness.

October 6, 2015 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

Thursday, October 01, 2015

Bipartisan federal sentencing reform bill due to emerge from Senate today

In part because October is my favorite month, I am likley to remember that a potentially historic federal sentencing reform bill emerged from behind the Senate negotiating curtain on the first day of October 2015.  This New York Times article, headlined "Senators to Unveil Bipartisan Plan to Ease Sentencing Laws," previews some of what we should expect to see in the bill.  Here are excerpts:

A long-­awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still­-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

The authors also took steps to deny any new leniency to those who committed serious violent crimes or drug felonies. And the bill would put some new mandatory minimum sentences in place for those convicted of interstate domestic violence or providing weapons or other material to terrorists or certain countries.

Lawmakers hoping for more sweeping changes did not win the across­theboard reductions in mandatory minimum sentences they had sought when the negotiations began. They compromised to win the backing of Mr. Grassley, who in the past has been critical of broad efforts to reduce prison time.

If the authors wish to push the legislation through this year, it will require an aggressive effort and a decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to make the measure a priority. The bill is most likely to be considered by the Judiciary Committee this month, with a committee vote possible on Oct. 22. Congressional consideration could also be kicked into 2016....

Backers of a criminal justice overhaul were not aware of the details of the legislative deal, which senators were trying to keep under wraps until the announcement Thursday, but they welcomed the movement toward getting the debate in the public arena.

“This sounds good to us,” said Mark Holden, general counsel for Koch Industries, which has led conservatives in calling for new sentencing laws and is part of the bipartisan Coalition for Public Safety. “It is a good place to start, and hopefully this will be the impetus that gets things moving.”  Holly Harris, the executive director of the U.S. Justice Action Network, another part of the coalition, noted that “the devil is in the details.”

I share the sentiments that this sounds like a pretty good deal and that the devil is really in the details. But, absent the details looking very ugly, I am going to be a vocal and aggressive advocate for this bill because it seems like the only federal sentencing reform proposal with any realistic chance of getting to President Obama's desk while he is still President Obama.

October 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Wednesday, September 30, 2015

"The Costs and Benefits of Subjecting Juveniles to Sex-Offender Registration and Notification"

LogoThe title of this post is the title of this notable new research report released by the R Street Institute. Here is the report's executive summary:

Every state and territory in the United States has registration and notification laws that apply to adults convicted of, and juveniles adjudicated delinquent for, certain sex offenses.  Most jurisdictions enacted these laws on their own, but expanded them in response to the Adam Walsh Act of 2006 (AWA).

Registration laws require offenders to appear in person to provide identifying information (e.g., fingerprints, DNA samples) and, at least once a year, to provide an updated current photograph.  States vary with respect to the kinds of additional information they require, but the list is extensive.  An in-person update also is required for any covered change in life circumstances.  These include changes in residential, school, work or email addresses, screen names and even blog avatars.  

The time allowed to complete each update is short. Failure to register or update an existing registration is itself a felony.  Offenders may be covered by multiple states, each with its own rules and procedures.  Notification laws make some of this information publicly available via the Internet.

Registration is calculated to produce about $200 million in social benefits per year.  Social costs are calculated to range from $200 million to $2 billion, depending on the proportion of registrants listed due to offenses committed as juveniles.  Thus, net benefits are calculated to range from -$40 million to -$1 billion per year, with present-value net benefits that range from -$2 billion to -$20 billion.  This result depends on a small number of parameters.  First, based on the best available study in the literature, which applies to all sex offenders and not just juveniles, registration is assumed to have reduced sex-offense recidivism by about one-eighth.  This translates into an annual reduction of about 800 major sex offenses committed by juveniles.

Notification is estimated to produce no social benefits, with social costs per-year that range from $10 billion to $40 billion and present-value costs that range from -$100 billion to -$600 billion.  About three-fourths of these costs are borne by sex offenders’ neighbors. This occurs because living near a registered sex offender – whether an adult or juvenile – has a substantial “disamenity” value.  Costs imposed on juvenile offenders are calculated to range from $400 million to $2 billion per year.  Costs on their families are calculated to add another 50 percent to these amounts.  Additional costs on third parties are calculated as: $3 billion per year on employers for registry searches; $100-$500 million on employers for adaption and mitigation of employment issues; and $200 million to $1 billion on the public for registry searches.

Because notification cannot produce net benefits, the qualitative prospective benefit-cost analysis focuses on ways to reduce the social costs of notification.  A number of reform alternatives warrant consideration to reduce the substantial net social costs of notification. These alternatives involve exempting certain fractions of registrants listed due to offenses committed as juveniles.  High-quality risk assessment is necessary to minimize false positives.

September 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, September 29, 2015

New papers looking closely (and differently) at offender-based sentencing considerations

I just noticed via SSRN these two new papers that take very different approaches to considering offender-based factors at sentencing:

September 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, September 25, 2015

Depressing new 2005 released-prisoner recidivism data from BJS (with lots of spin possibiities)

I just received notice of this notable new Bureau of Justice Statistics report titled "Multistate Criminal History Patterns of Prisoners Released in 30 States."  Though the BJS report and this BJS press release and this BJS summary are primarily focused on state prisoners released in 2005 who were thereafter arrested in another state, the biggest big-picture message is that for the BJS cohort of roughly 400,000 studied state prisoners released in 2005, nearly 80% were rearrested within the next five years. I cannot help but be depressed and saddened that only about one in five persons released from state prisons in 2005 was able to avoid significant contact with the criminal justice system over the subsequent five years.

Unsurprisingly, Bill Otis and other supporters and advocates of modern American incarceration levels have generally stressed these disconcerting recidivism data to assert crime is certain to increase if we enact reforms to significantly reduce our prison populations and let more folks out of prison sooner. But it bears remembering that these 2005 released prisoners served their time in state prisons and were released when the national prison population was continuing to grow and limited state resources were generally being devoted toward sending more people to prison and spending less money trying to keep people out of prison (or to aid reentry when prisoners were being released). These data thus also suggest what many reform-advocating criminologists have long said: the life disruptions and other impact of a prison term (especially when followed by poor reentry efforts) is itself criminogenic and thus serves to increase the likelihood an offender will commit crimes once released.

However one thinks about these new BJS data, it is depressingly obvious that the experience of prison for those prisoners released in 2005 seems to have done a very poor job of encouraging past offenders from becoming repeat offenders. I am cautiously hopeful that an array of prison and reentry reforms enacted by many states over the last decade will result in a much lower recidivism rate for state prisoners now being released in 2015. But only time (and lots of careful data analysis) will tell.

September 25, 2015 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

Thursday, September 24, 2015

Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing

This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:

Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.

Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.

Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.

Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.

The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”

The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.

The referenced appellate court certification opinion is available at this link, and it begins this way:

We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.

September 24, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections | Permalink | Comments (3)

First Circuit panel reverses stat max drug sentence based on co-defendant disparity

A panel of the First Circuit handed down a lengthy and significant sentncing opinion yesterday in US v. Reyes-Santiago, No. 12-2372 (1st Cir. Sept. 23, 2015) (available here). Here is how the majority opinion begins:

Appellant Jorge Reyes-Santiago ("Reyes") was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico.  Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the chieftain of the enterprise.  Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government's alleged breach of his plea agreement, the sentencing court's alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants.  Reyes also claims the district court erred in ordering a 24-month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.

We find merit in the disparity argument.  Ultimately, in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant #9 in the indictment, and for the conspiracy's kingpin, Defendant #1.  Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants' criminal conduct and other individual circumstances.  In this case, after reviewing Presentence Investigation Reports ("PSRs") and sentencing transcripts for the leaders in the conspiracy, we conclude that the rationale offered by the district court for the substantial disparity between Reyes's sentence and the sentences of others above him in the conspiracy's hierarchy is unsupported by the record.  We therefore must remand this case to the district court for reconsideration of Reyes's sentence.

September 24, 2015 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Monday, September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines

In this prior post a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the possibility that Johnson could impact past, present and future sentencings pursuant to the career offender guideline of the US Sentencing Guidelines. 

Since then, I believe that the Department of Justice has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is also used in the guideline definition of a career offender.  In addition, as noted in this post from last month, the US Sentencing Commission has proposed amending the career offender guideline to eliminate the Johnson-problematic definition of a crime of violence.   And I believe at least a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But today an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (Sept. 21, 2015) (available here), squarely addresses this issue and rules that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  Here is how the Matchett opinion gets started:

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines.  Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence.  Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning.  After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon.  When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee.  The district court did not err when it denied Matchett’s motion to suppress.  It also correctly determined that Matchett’s previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett’s resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer.  We reject Matchett’s argument that the definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).  The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines.  We affirm.

Some prior related posts:

September 21, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Friday, September 18, 2015

Shouldn't former federal judge Mark Fuller now be federally prosecuted for perjury?

The question in the title of this post prompted by this new AP article, headlined "Judicial Conference says former federal judge's conduct was reprehensible, impeachable." Here are the details:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge — had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.  

In a letter to the House Judiciary Committee [which can be accessed here], the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary. "This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner....

The Judicial Conference wrote that there was substantial evidence that the judge "physically abused Kelli Fuller at least eight times, both before and after they married, which included and culminated in the assault that took place on Aug. 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia." The conference wrote that Fuller denied under oath to the investigating committee that he ever hit, punched or kicked his wife, and that the investigating committee considered those to be false statements. The Judicial Conference also cited a separate incident, on which it did not elaborate, saying Fuller in 2010 made a false statement to the chief judge that caused a disruption in operations and a loss of public confidence in the court.

The House committee is not releasing the full report, which contains some sensitive victim information. Fuller was placed on leave after his arrest. In May, he announced that he was resigning effective Aug. 1. The Judicial Council of the U.S. 11th Circuit at the time said Fuller's actions might have warranted impeachment, but the reasons for the determination were not released until this week.

Fuller was appointed to the bench in 2002 by then-President George W. Bush. He is perhaps best known for presiding over the 2006 public corruption trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

As celebrity white-collar attorneys surely recall, in recent times a number of prominent public figures ranging from Barry Bonds to Roger Clemens to Marion Jones to 'Lil Kim to Scooter Libby have been federally prosecuted for alleged acts of perjury that seems far less serious and consequential than what the Judicial Conference has found former judge Mark Fuller committed.  Absent some prominent explanation for why a federal perjury prosecution would not be worthwhile in this setting, I will be mighty disappointed and a bit concerned if Fuller does not face sanctions for his apparent criminal behavior in this matter.  (Critically, I am not — at least not yet — asserting that Fuller should be imprisoned for his lying under oath to cover up his misbehavior and stay in his position as a federal judge.  But I am saying (former state DA prosecutor) Fuller ought to at least face federal criminal charges and be subject to the heat that comes with a formal federal prosecution.)

September 18, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15)

Monday, September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 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 (2)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, September 10, 2015

New Justice Department sound and fury about white-collar prosecutions signifying....?

The interrupted question in the title of this post is my first-cut reaction and uncertainty in response to this front-page New York Times report on new Justice Department guidance concerning white-collar prosecutions.  The NYTimes piece is headlined "Justice Department Sets Sights on Wall Street Executives," and here are excerpts:

Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.

The new rules, issued in a memo to federal prosecutors nationwide [which can be accessed here], are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.

“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.” Photo

Though limited in reach, the memo could erase some barriers to prosecuting corporate employees and inject new life into these high-profile investigations. The Justice Department often targets companies themselves and turns its eyes toward individuals only after negotiating a corporate settlement. In many cases, that means the offending employees go unpunished.

The memo, a copy of which was provided to The New York Times, tells civil and criminal investigators to focus on individual employees from the beginning. In settlement negotiations, companies will not be able to obtain credit for cooperating with the government unless they identify employees and turn over evidence against them, “regardless of their position, status or seniority.” Credit for cooperation can save companies billions of dollars in fines and mean the difference between a civil settlement and a criminal charge....

But in many ways, the new rules are an exercise in public messaging, substantive in some respects but symbolic in others. Because the memo lays out guidelines, not laws, its effect will be determined largely by how Justice Department officials interpret it. And several of the points in the memo merely codify policy that is already in place.

“It’s a good memo, but it states what should have been the policy for years,” said Brandon L. Garrett, a University of Virginia law professor and the author of the book “Too Big to Jail: How Prosecutors Compromise With Corporations.” “And without more resources, how are prosecutors going to know whether companies are still burying information about their employees?”

It is also unknown whether the rules will encourage companies to turn in their executives, but Ms. Yates said the Justice Department would not allow companies to foist the blame onto low-level officials. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail,” she said.

Under Attorney General Eric H. Holder Jr., the Justice Department faced repeated criticism from Congress and consumer advocates that it treated corporate executives leniently. After the 2008 financial crisis, no top Wall Street executives went to prison, highlighting a disparity in how prosecutors treat corporate leaders and typical criminals. Although prosecutors did collect billions of dollars in fines from big banks like JPMorgan Chase and Citigroup, critics dismissed those cases as hollow victories.

Justice Department officials have defended their record fighting corporate crime, saying that it can be nearly impossible to charge top executives who insulate themselves from direct involvement in wrongdoing. Ms. Yates’s memo acknowledges “substantial challenges unique to pursuing individuals for corporate misdeeds,” but it says that the difficulty in targeting high-level officials is precisely why the Justice Department needs a stronger plan for investigating them....

Ms. Yates, a career prosecutor, has established herself in the first months of her tenure as the department’s most vocal advocate for tackling white-collar crime. She foreshadowed plans for the new policy in a February speech to state attorneys general, in which she declared that “even imposing unprecedented financial penalties on the institutions whose conduct led to the financial crisis is not a substitute for holding individuals within those institutions personally accountable.”...

While the idea of white-collar investigations may conjure images of raids of corporate offices by federal agents, the reality is much different. When suspected of wrongdoing, large companies typically hire lawyers to conduct internal investigations and turn their findings over to the Justice Department. Those conclusions form the basis for settlement discussions, and they are likely to take on greater significance now that companies will be expected to name names....

Still, even if the Justice Department’s effort succeeds, it will not automatically put more executives behind bars. Mr. Garrett, the University of Virginia law professor, analyzed the cases in which corporate employees had been charged. More than half, he said, were spared jail time.

I am going to need to read the new Yates memo a few times before I will have any sense of whether and how this new guidance to federal prosecutors is likely to really "move the needle" with respect to white-collar prosecutions. But, in part because my white-collar expertise and experience is at the sentencing stage after an individual has been charged and convicted of a federal economic crime, I am not sure I will ever be able to see clearly from the very back-end of the federal criminal process how much this memo could alter what typically happens at the very front-end of the federal criminal process in the corporate crime world.

In turn, I would be grateful to receive (in the comments or off-line) input from persons with more experience than me on the front-end of corporate criminal investigations about whether this Yates memo signifies much or not so much in the white-collar world. If nothing else, I suspect the Yates memo will prompt many "client alert memos" from big corporate law firms to their corporate clients, and perhaps what those client alerts say about the Yates memo could matter as much as what the Yates memo itself says.

UPDATE: At this link one can now find the text of the big speech Deputy Attorney General Sally Quillian Yates delivered today at New York University School of Law concerning DOJ's "New Policy on Individual Liability in Matters of Corporate Wrongdoing."  White-collar practitioners will want to read the speech in full, and here is one thematic paragraph from the heart of the text:

But regardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases.  The public expects and demands this accountability.  Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.  We could be doing a bang-up job in every facet of the department’s operations — we could be bringing all the right cases and making all the right decisions.  But if the citizens of this country don’t have confidence that the criminal justice system operates fairly and applies equally — regardless of who commits the crime or where it is committed — then we’re in trouble.

September 10, 2015 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Monday, September 07, 2015

Lots of interesting criminal-justice reading for the long weekend

As I enjoy the tail end of a lovely holiday weekend, I will seek to honor laborers by here labroing to assemble links to a number of recent criminal-justice articles and commentaries from various media outlets.  Each of these pieces could merit its own separate post, but I am content today to throw them all together (in no particular order) with a hope that readers might flag whichever of the pieces they think justify special attention:

September 7, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, September 02, 2015

Prison realities and reform insights from "Mr. Smith Goes to Prison"

51Qm5bXG9NL._SY344_BO1,204,203,200_Politico magazine has this fascinating excerpt from a new book titled "Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America’s Prison Crisis."  The book is authored by Jeff Smith, a former Missouri state senator, who spent a year in federal prison for violating federal election laws, and parts of the excerpt read a bit like the Y-chromisone version of Orange is the New Black. But, as these passage highlight, it appears the book covers much more than just the fish-out-of-water elements of prison life for a white-collar offender:

Long story short: Five years after losing the election, I pleaded guilty to two counts of obstruction of justice for impeding the federal investigation Carnahan had initiated. But I requested an unorthodox sentence: two years of home confinement and full-time community service during which I would be allowed to leave my house only to teach civics and coach basketball at a St. Louis charter school I’d co-founded a decade earlier. It would’ve saved taxpayers about $175,000: two years of a teacher’s salary, plus the cost of housing a federal prisoner, since I would’ve paid for my electronic monitoring. More than 300 people, including a bipartisan group of the state’s top elected officials, wrote public letters to the to the judge requesting clemency and arguing that — as the prison counselor in Kentucky would later note — locking me up would be a waste. But the Feds portrayed me as the mastermind of a “textbook case of political corruption” and pushed for a harsh sentence at the top of the federal guidelines. The judge gave me a year and a day in federal prison.

Six months later, I was adrift in a sea of sharks — a professor-turned-politician-turned-felon forced to learn prison patois and the politics of survival. Among other areas, I’d studied and taught criminal justice policy as a political scientist for a decade. But in prison I would be the student, not the teacher.

This is the story of what I learned — about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me — and didn’t — for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders’ lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates....

Prisons have been called “training grounds for rapists,” and according to one estimate based on two decades of surveys, nearly 300,000 rapes occur annually in U.S. prisons. The most recent Justice Department data concluded that from 2003 to 2012, nearly 2 million inmates were sexually assaulted, costing society as much as $51.9 billion annually, including the costs of victims’ compensation and increased recidivism. Advocates hoped that passage of the 2003 Prison Rape Elimination Act (PREA), which sought to prevent, uncover and address sexual assault, would help, but many large states have refused to comply with it (with little consequence). In 2011, a typical prisoner’s likelihood of being raped was roughly 30 times higher than that of a given woman on the outside, suggesting a depressingly steady trendline despite PREA’s passage. And since reporting assaults will only bring more trouble from fellow prisoners and COs alike, most victims remain quiet, rendering official prison data unreliably low.

Exacerbating this is a dearth of post-rape psychological treatment during incarceration and reentry, which increases the likelihood that victims will suffer from PTSD as well as their odds of recidivism — especially for crimes involving sexual assault. Tragically, prison rape often causes compensatory aggression as untreated victims commit rapes upon release to reclaim their manhood in the same way they imagine it was lost. This vicious cycle by which (frequently) nonviolent offenders become violent is the opposite of the duty that “correctional institutions” are meant to perform....

I spent less than a year in prison. In the words of my first cellie, I had less time in prison than he had done on the prison toilet. I had every advantage upon re-entry: I was a white guy with a Ph.D. from a top school, community and family support, and financial savings. Yet getting a decent job was a struggle. I often think about the re-entry of the guys I was locked up. Most had a GED earned in prison; some hadn’t had a visit in years, or even a decade, and had no one to call on the phone; few had savings to fall back on. They would be coming home to a world in which four of five landlords and nine of 10 employers run criminal background checks on prospective tenants and employees to screen out felons, in which many are not allowed to vote or use food stamps and in which they must immediately find money to pay for a halfway house room and urinalysis tests even as they cannot afford clothes for a job interview.

Mass incarceration is driven in large part by sky-high recidivism rates, and when one contemplates the myriad obstacles to successful prisoner re-entry, one grasps that the system is not, as many claim, broken at all; rather, it appears to be a well-oiled machine, keeping millions of people out of our economic mainstream. And only a shift in our cultural mindset — a realization that people who are incarcerated could, to paraphrase President Obama after his recent prison visit to a federal prison, be our brothers, our sons, our mothers, or ourselves — will change that.

September 2, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1)

Tuesday, September 01, 2015

"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"

The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:

This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.

However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites.  After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent.  These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.

September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, August 27, 2015

"When Prisons Need to Be More Like Nursing Homes"

The title of this post is the headline of this new lengthy Marshall Project piece about the challenges posed by an aging prison population.  Here is how it begins:

America’s prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren’t designed to serve as nursing homes.

Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation’s prison inmates — or 145,000 people — were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration. Caring for elderly inmates can cost up to twice as much as caring for younger ones.

In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007 — its most recent figures — the state’s corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.

Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care.  “If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit’’ Stern said, “they would say, ‘O.K., where's your geriatric unit? Where's your dementia unit?’ It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization.”

But some states are confronting the costs and the problems. Here is a look at some innovative programs in New York, California and Connecticut.

A few (of many) recent and older related posts:

August 27, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 21, 2015

New from the Robina Institute: "The Criminal History Enhancements Sourcebook"

FileVia e-mail, I just learned about an exciting new resource from the folks at Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail discussing the new resource:

The Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School is pleased to announce the publication of the Criminal History Enhancements Sourcebook, which examines elements of criminal history enhancements in 18 state and federal jurisdictions within the United States.  This publication is the result of the Robina Institute’s Criminal History Enhancements Project, led by project Co-Directors Professor Richard S. Frase and Visiting Professor Julian V. Roberts.

Criminal history scores make up one of the two most significant determinants of the punishment an offender receives in a sentencing guidelines jurisdiction. While prior convictions are taken into account by all U.S. sentencing systems, sentencing guidelines make the role of prior crimes more explicit by specifying the counting rules and by indicating the effect of prior convictions on sentence severity. Yet, once established, criminal history scoring formulas go largely unexamined. Moreover, there is great diversity across state and federal jurisdictions in the ways that an offender’s criminal record is considered by courts at sentencing.

This publication brings together for the first time information on criminal history enhancements in all existing U.S. sentencing guidelines systems. Building on this base, the Sourcebook examines major variations in the approaches taken by these systems, and identifies the underlying sentencing policy issues raised by such enhancements.

The Sourcebook contains the following elements:

  • A summary of criminal history enhancements in all guidelines jurisdictions;

  • An analysis of the critical dimensions of an offender’s previous convictions;

  • A discussion of the policy options available to commissions considering amendments to their criminal history enhancements; and

  • A bibliography of key readings on the role of prior convictions at sentencing.

The Sourcebook is available for download in full text or by chapter. To download the Sourcebook or learn more about the Robina Institute’s Criminal History Enhancements Project, visit our website and the Criminal History Enhancements Project page

August 21, 2015 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, August 18, 2015

"Can a Federal Prisoner Be Too Old to Jail?"

The title of this post is the headline of this notable new National Journal article.  Here are excerpts:

When you're locked in federal prison, how old do you have to be to count as "aging"?

That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons.  And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.

The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses.  In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older.  And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.

To meet those costs, the Bureau of Prisons is requesting a 6.1 percent increase in funding for fiscal 2016, an increase from the bureau's $6.9 billion budget in 2015.  But in a report released in May, the Justice Department Office of the Inspector General suggested the Bureau of Prisons consider an alternative solution: expand a "compassionate-release" program that reduces the term of imprisonment for elderly inmates.

To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons.  They must also have served more than half of their sentence.  For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."...

But for any of the above criteria to be considered, the inmate must be aged 65 or older. The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report.  Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.

The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said.  The report notes several ways in which prisoners 50 and over differ from the rest of the prison population.  Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release.  While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.

According to the Inspector General report, lowering the threshold age from 65 to 50 and instituting a 5 percent release rate for only those inmates in minimum or low-security institutions or medical centers could reduce incarceration costs by approximately $28 million per year.  Federal prisons with the most aging inmates spent "five times more per inmate on medical care" and "14 times more per inmate on medication" than institutions with the fewest aging inmates, the report said.

The 65-or-over bar for the program is relatively new, set in 2013 in an effort to clarify the release program's eligibility criteria following a separate Inspector General report released earlier that year....  For now, it's unclear whether the Bureau of Prisons will lower the minimum age for its compassionate-release program.  In its response to the May Inspector General report, the agency said it would "raise the issue with relevant stakeholders for further discussion."

August 18, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, August 13, 2015

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Saturday, August 08, 2015

Ohio Gov (and GOP Prez candidate) links Obamacare and crime/recidivism reduction

I am a big fan of Ohio Gov John Kasich for a variety of reasons, and my affinity for the guy is significantly enhanced by the fact that he has, as noted in this article, appropriately linked health care reforms and public safety.  The article is headlined "Kasich Says Obamacare Empties Prisons — In a Good Way," and here are excerpts:

The Ohio governor says the program, unpopular with Republicans, has reduced recidivism rates. Ohio Gov. John Kasich defended his expansion of Medicaid under Obamacare at Thursday night’s Republican presidential debate.

The Medicaid expansion, unpopular among many of the Republican faithful, has benefited mentally ill prison inmates, said Kasich. “I’d rather get them their medication so they could lead a decent life,” he said.

“Eighty percent of the people in our prisons have addictions or problems,” Kasich added. “We now treat them in the prisons, release them in the community and the recidivism rate is 10 percent….”

I have highlighted in a number of prior posts that a lot of "wonks" have sensibly suggested that Obamacare might prove over time to be an extraordinarily valuable public safety achievement. Here are some of these prior posts:

August 8, 2015 in Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Saturday, August 01, 2015

Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"

The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:

The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.”  However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care.  Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.

Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories.  Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.

Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses.  According to recent data, 1.5 million cases are prosecuted in juvenile court annually.  Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities.  Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards.  Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.

"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences?  Why are these groups overrepresented within our courtrooms and prisons?  Can we identify and propose strategies for reform?

August 1, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Tuesday, July 28, 2015

Federal authorities grant parole to spy Jonathan Pollard after 30 years in prison

As reported in this new New York Times story, headlined "Jonathan Pollard, Spy for Israel, to Be Released on Parole in November," a high-profile defendant who committed his crimes before the federal system abolished parole has now benefited from the reality that life sentences in the past frequently just meant a long period before parole eligibility. Here are the details:

Jonathan J. Pollard, who was sentenced to life in prison in 1985 for passing classified documents to the Israeli government, will be released on parole in November after 30 years in prison, a government panel decided on Tuesday. Mr. Pollard’s lawyers announced the decision of the United States Parole Commission on Tuesday afternoon, and officials at the Department of Justice confirmed that Mr. Pollard had been granted parole.

Mr. Pollard, 60, had been scheduled for mandatory parole in November, but could have been kept in prison for years longer if the United States government had objected to his release, citing concerns about an ongoing threat to national security.

Last week, officials for the Department of Justice signaled that they would not object to Mr. Pollard’s release if the United States Parole Commission determined that he should leave the prison in North Carolina where he is being held. “The Department of Justice has always maintained that Jonathan Pollard should serve his full sentence for the serious crimes he committed, which in this case is a 30-­year sentence, as mandated by statute, ending Nov. 21, 2015,” Marc Raimondi, a spokesman for the department, said in a statement....

White House officials have denied that Mr. Pollard’s imminent release — something that Prime Minister Benjamin Netanyahu of Israel and others in the country have demanded for years — is an attempt to placate the Israelis in the wake of the Iran deal. “Mr. Pollard’s status will be determined by the United States Parole Commission according to standard procedures,” Alistair Baskey, a spokesman for the National Security Council, said last week. “There is absolutely zero linkage between Mr. Pollard’s status and foreign policy considerations.”

July 28, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, July 20, 2015

"Trustworthiness of Inmate’s Face May Sway Sentencing"

The title of this post is the headline of this helpful summary of an interesting new study from the journal Psychological Science.  Here are highlights of the summary:

How trustworthy an inmate’s face appears to others seems to play a very large role in the severity of the sentence he receives, according to new research published in the journal Psychological Science.

The study shows that inmates whose faces were rated as low in trustworthiness by independent observers were more likely to have received the death sentence than inmates whose faces were seen as more trustworthy, even when the inmates were later cleared of the crime.

The findings reveal just how powerful appearances can be in guiding judgment and decision making, influencing outcomes in situations that are literally a matter of life and death.

“The American justice system is built on the idea that it is blind to all but the objective facts, as exemplified by the great lengths we go to make sure that jurors enter the courts unbiased and are protected from outside influences during their service. Of course, this ideal does not always match reality,” said Drs. John Paul Wilson and Nicholas Rule, psychological scientists at the University of Toronto and co-authors on the study. “Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone.”

Previous studies have confirmed a bias against faces perceived as untrustworthy, but much of the these have relied on study participants contemplating criminal verdicts hypothetically. For the new study, the researchers wanted to know whether this bias extended beyond the lab to a very real, and consequential, decision: whether to sentence someone to life in prison or to death.

The researchers used the photos of 371 male inmates on death row in Florida; 226 of the inmates were white, 145 were black, and all were convicted of first-degree murder. They converted the photos to gray to minimize any variations in the images and asked an online panel of 208 American adults to look at the photos and rate them on trustworthiness using a scale from one (not at all trustworthy) to eight (very trustworthy). The participants also evaluated photos of age- and race-matched inmates who had also been convicted of first-degree murder but received a sentence of life in prison instead of death. The raters did not know what sentence an inmate had received, or even that the photos were of inmates at all.

The findings showed that inmates who had received the death sentence tended to be perceived as less trustworthy than those sentenced to life in prison; in fact, the less trustworthy a face was deemed, the more likely it was that the inmate received the death sentence. This connection remained even after the researchers took various other factors into account, such as facial maturity, attractiveness, and the width-to-height ratio of the face.

Importantly, the inmates in the two groups had committed crimes that were technically equally severe, and neither sentence would have allowed for the inmates to return to society — as such, the motivation to protect society could not explain the harsher punishments consistently given to the less trustworthy-looking inmates. “Any effect of facial trustworthiness, then, seems like it would have to come from a premium in wanting to punish people who simply look less trustworthy,” the researchers said.

Even further, a follow-up study showed that the connection between perceived trustworthiness and sentencing emerged even when participants rated photos of inmates who had been sentenced but who were actually innocent and later exonerated. “This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth,” said Wilson and Rule.

The published study is available here, and its actual title is "Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes."

July 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Friday, July 17, 2015

You be the federal judge: should tax cheating former rep Michael Grimm go to prison?

As previewed by this AP article, headlined "Ex-NY Congressman Grimm Faces Sentencing in Tax Case," a high-profile white-collar defendant is due to be sentenced in federal court today. Here are the basics about the case to enable answering the question posed in the title of this post:

Lawyers for former U.S. Rep. Michael Grimm have asked a judge to spare him a prison term at his sentencing, while prosecutors argue he deserves at least 2 years behind bars for tax evasion. The sentencing Friday in federal court in Brooklyn before U.S. District Judge Pamela Chen follows Grimm's guilty plea late last year to aiding in filing a false tax return — a charge that stemmed from an investigation into the Staten Island Republican's campaign financing.

Prosecutors say the tax fraud began in 2007 after Grimm retired from the FBI and began investing in a Manhattan eatery called Healthalicious.  An indictment accused him of underreporting more than $1 million in wages and receipts to evade payroll, income and sales taxes, in part by paying immigrant workers, some of them in the country illegally, in cash.

Grimm, 45, won re-election in November while fighting the charges, but later resigned. In court papers asking for a sentence of probation, defense lawyers called Grimm's offense "an aberration in an otherwise remarkable life in selfless service of his country," including a stint in the Marine Corps.  They also argued that losing his career in Congress was punishment enough.

Grimm "is tremendously remorseful over his offense," they wrote.  "He understands that his tax violation is not something to be taken lightly, and he is anguished over his wrongdoing and will live with the shame of it the rest of his life."

Prosecutors countered by telling the judge Grimm's record of "falsely minimizing his criminal conduct and impugning anyone who questions him is indicative of an individual who has not come to terms with his own crimes."  The government papers cite a news conference last year outside the courthouse where Grimm called the case "a political witch hunt."  The papers also refer to an episode in which Grimm threatened to throw a local cable TV news reporter off the balcony of the capitol for asking about the campaign financing inquiry.

If there was a formal sentencing enhancement for acting like a pompous ass, I might expect Grimm to be heading to the federal pen. But I would guess that Grimm's ultimate willingness to plead guilty and resign from Congress will help him secure a nonprison punishment in this case.

UPDATE: This local article details that I was wrong in my guess that Grimm would not be sentenced to prison; as the headline explains, "Michael Grimm gets 8 months in prison at sentencing."

July 17, 2015 in Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Friday, July 10, 2015

“The Sexual Abuse to Prison Pipeline: The Girls’ Story”

Download (13)The title of this post is the title of this notable new report coming from a collaboration by the Human Rights Project for Girls, the Georgetown Law Center on Poverty and Inequality, and the Ms. Foundation for Women.  Here is the report's introduction:

Violence against girls is a painfully American tale. It is a crisis of national proportions that cuts across every divide of race, class, and ethnicity.  The facts are staggering: one in four American girls will experience some form of sexual violence by the age of 18.  Fifteen percent of sexual assault and rape victims are under the age of 12; nearly half of all female rape survivors were victimized before the age of 18.  And girls between the ages of 16 and 19 are four times more likely than the general population to be victims of rape, attempted rape, or sexual assault.

And in a perverse twist of justice, many girls who experience sexual abuse are routed into the juvenile justice system because of their victimization. Indeed, sexual abuse is one of the primary predictors of girls’ entry into the juvenile justice system.4 A particularly glaring example is when girls who are victims of sex trafficking are arrested on prostitution charges — punished as perpetrators rather than served and supported as victims and survivors.

Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests. More harmful still is the significant risk that the punitive environment will re-trigger girls’ trauma and even subject them to new incidents of sexual victimization, which can exponentially compound the profound harms inflicted by the original abuse.

This is the girls’ sexual abuse to prison pipeline.

This report exposes the ways in which we criminalize girls — especially girls of color — who have been sexually and physically abused, and it offers policy recommendations to dismantle the abuse to prison pipeline. It illustrates the pipeline with examples, including the detention of girls who are victims of sex trafficking, girls who run away or become truant because of abuse they experience, and girls who cross into juvenile justice from the child welfare system. By illuminating both the problem and potential solutions, we hope to make the first step toward ending the cycle of victimization-to-imprisonment for marginalized girls.

July 10, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Thursday, July 09, 2015

A few (quickie) direct appeal Johnson remands in Sixth and Ninth Circuits

Regular readers know I am (too?) eagerly anticipating all the lower court litigation that seems sure to unfold in the weeks and months ahead in the wake of the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   And now, thanks to some helpful readers and Westlaw, I can report on the first few of what might be called "Johnson sightings" in the circuit courts.

Specifically, in these two unpublished opinions handed down earlier this week, the Sixth and Ninth Circuits relied on Johnson to remand sentencing claims to district courts: US v. Darden, No. 14-5537 (6th Cir. July 6, 2015) (available here); US v. McGregor, No. 13-10384 (9th Cir. July 7, 2015) (available here).  The Darden ruling is the more notable of these two remands because the defendant was not appealing application of ACCA but rather the issue was "whether one of Darden’s previous convictions qualifies as a 'crime of violence”' under the residual clause of § 4B1.2(a)(2)" of the US Sentencing Guidelines. Here is how the Sixth Circuit panel quickly justified a remand:

In Johnson v. United States, No. 13-7120 (U.S. June 26, 2015) (slip op. at 10, 15), the Supreme Court held that the identically worded residual clause of the Armed Career Criminal Act is void for vagueness.  Compare U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).  We have previously interpreted both residual clauses identically, see United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009); United States v. Houston, 187 F.3d 593, 594–95 (6th Cir. 1999), and Darden deserves the same relief as Johnson: the vacating of his sentence.  Indeed, after Johnson, the Supreme Court vacated the sentences of offenders who were sentenced under the Guidelines’ residual clause.  United States v. Maldonado, 581 F. App’x 19, 22–23 (2d Cir. 2014), vacated, 576 U.S. __ (2015); Beckles v. United States, 579 F. App’x 833, 833–34 (11th Cir. 2014), vacated, 576 U.S. __ (2015). The same relief is appropriate here.

Critically, the vacating of these sentences on appeal does not entail the certainty of a win for the defendant upon return to the district court. But it does highlight that Johnson is likely, at the very least, to get many defendants still pressing related sentencing claims on direct appeal the important first opportunity to get back in front of the district court for a new round of proceedings.

Some prior posts on Johnson and its possible impact:

July 9, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Wednesday, July 08, 2015

Federal habeas ruling decides Virginia's geriatric release does not permit juve LWOP

A helpful reader alerted me to a notable federal habeas decision handed down last week by a federal district court in Virginia. In LeBanc v. Mathena, No. 2:12cv340 (ED Va July 1, 2015) (available here), the federal judge rejected the claim embraced by the Supreme Court of Virginia’s decision that the state's geriatric release provisions allowed the sentencing juveniles to life without parole sentences without violating the Supreme Court's Graham ruling. The LeBlanc decision has a number of powerful passages, and here are some key portions of the 32-page ruling:

Virginia Code § 53.1-40.01 governs the possible release of geriatric prisoners, and provides for the opportunity of conditional releaseto prisoners who have reachedthe age ofsixty or older and have served at least ten years of their sentence, or who have reached the age of sixty-five or older and have served at least five years of their sentence.  The Supreme Court of Virginia concluded that in light ofthis provision, Virginia's sentencing scheme can be construed as being in compliance with Graham.  The Virginia Supreme Court held that the possibility of geriatric release provides a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."...

This theory of compliance is a misapplication of the governing legal principle of Graham—that children are different and warrant special consideration in sentencing....  By relying on a geriatric release provision — a provision that by its very name was designed to be invoked by and on behalf of the elderly — in an attempt to salvage unconstitutional sentences, the Supreme Court of Virginia and the state trial court missed the heart of Graham — that children are, and must be recognized by sentencing courts as, distinguishable from adult criminals....

If it can be said that Virginia's sentencing scheme treats children differently than adults, it would be because, tragically, the scheme treats children worse.  Under Virginia's current sentencing policies, prisoners are serving sentences of life without the possibility of parole for nonhomicide offenses that they committed as children.  Like any other prisoner in Virginia, regardless of their age at the time of the offense, if these prisoners live to see the age ofsixty or sixty-five, they may apply for geriatric release.  This treats children worse than adults....

The Supreme Court has recognized that nonhomicide juvenile offenders serving life sentences must be given "the opportunity to achieve maturity ofjudgment and self-recognition of human worth and potential."  Graham, 560 U.S. at 79.  The distant and minute chance at geriatric release at a time when the offender has no realistic opportunity to truly reenter society or have any meaningful life outside of prison deprives the offender of hope.  Without hope, these juvenile offenders are being discarded in cages and left to abject despair rather than with any meaningful reason to develop their human worth.  This result falls far short of the hallmarks of compassion, mercy and fairness rooted in this nation's commitment to justice.”

July 8, 2015 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sixth Circuit holds Ohio condemned must have his Atkins claim properly considered

As reported in this local AP piece, headlined "Death row inmate wins appeal in Warren murder case," a Sixth Circuit panel yesterday issued a notable federal capital habeas rulin in Williams v. Mitchell, Nos. 03-3626/12-4269 (6th Cir. July 7, 2015) (available here). Here are the basics via the press report: 

A Warren man on death row for the brutal beating of an elderly couple may get his chance to escape the death penalty. An appeals court ruled that Andre Williams can continue to appeal his sentence claiming he was mentally disabled at the time of the 1988 crime.

George Melnick was killed and his wife Katherine was blinded in the attack.

The U.S. 6th District Court of Appeals ruled Tuesday that state courts failed to properly apply federal law governing claims of mental disability in capital punishment cases. The federal court said a lower court ruled improperly when it refused to recognize evidence of the 48-year-old Williams’ disabilities dating to when he was a teenager.

July 8, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, July 07, 2015

"Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders"

The title of this post is the title of this notable piece by Maureen Dowling now available via SSRN. Here is the abstract:

The United States Supreme Court has steadily been changing the way it approaches juvenile sentencing since 2005. This ideological shift has occurred as a response to the increase in biological and sociological studies, which point toward fundamental differences between juveniles and adults. This Note addresses how the new mandates by the Supreme Court have been implemented around the country, with a focus on statutory changes Illinois should make moving forward. Specifically, this Note argues that there are several adjustments Illinois will have to make in regards to the way it sentences juvenile homicide offenders, in order to be considered Constitutional based on the analysis set forth by the Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama.

First, lengthy, consecutive term-of-years sentences should be abolished because it does not give juvenile offenders the “meaningful opportunity for release” required by Graham.  This Note suggests that courts need to look at the idea of a “meaningful opportunity for release” differently when sentencing juveniles as opposed to adult offenders, because studies have shown that adolescents who are imprisoned have a much lower life expectancy than average.  Second, Illinois should amend its sentencing statutes to require judges to consider several factors, while on record at a sentencing hearing, before sentencing a juvenile homicide offender to life in prison.  These factors, laid out within this Note, will put Illinois at the forefront of ethical juvenile sentencing, while also ensuring that it does not violate the authority of Miller.  Admittedly, these theories have been criticized for being too ‘soft’ on punishment for juveniles who are convicted of felony murder.  However, the suggestions in this Note are meant to allow for the protection of the adolescent’s Eighth Amendment right to be free of cruel and unusual punishment, while also considering the severity and nature of the offense.

July 7, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Sunday, July 05, 2015

"A Reassessment of Common Law Protections for 'Idiots'"

The title of this post is the title of this new piece by Michael Clemente recently posted to SSRN. Here is the abstract:

When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.”  On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.”

This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow.  It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities.  Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

July 5, 2015 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1)

New York Times reviews juve problems with modern sex-offender laws

The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:

Until one day in December, Zachery Anderson was a typical 19­-year-­old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semi­anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line.  They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14....  He was [later] arrested and charged and, after pleading guilty to fourth­-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes.  In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors.  Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...

There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses.  In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low­risk individuals to live in areas closer to schools and parks that were previously off limits.  Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.

Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”

Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”

Prior related post:

July 5, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, July 01, 2015

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Tuesday, June 30, 2015

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (19)

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)