Tuesday, March 01, 2016

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Thursday, February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Wednesday, February 24, 2016

Vera Institute of Justice launches "The Human Toll of Jail"

6a00d83451574769e201bb08323a26970dI received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:

The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others.  Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails.  Stories in the project include:

  • INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.

  • RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son.  His story is told here as comics journalism.

  • THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success.  The result is a jail that looks nothing like the ones you’ve seen on TV.

  • A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.

  • JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.

February 24, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, February 22, 2016

"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing

The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story.  The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:

This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others.  Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions).  In both instances, the government must make a motion for a lower sentence.

This publication discusses the history and current use of Fed. R. Crim. P. 35(b).  It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions.  The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures. 

Key Findings

A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:

  • Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions.  There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.

  • Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range.  This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.

  • Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.

  • Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures.  This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.  The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.

  • Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.

  • Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.

February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, February 17, 2016

"Of Systems and Persons: The Ability and Responsibility of Corporate Law to Improve Criminal Punishment"

The title of this post is the title of this interesting-looking new paper available via SSRN authored by W. Robert Thomas. Here is the abstract:

The federal government has used criminal fines to punish corporations for as long as it has been punishing corporations.  Yet to this day, with more than a century in which to get the punishment right, corporate-criminal fines fail to satisfy virtually any standard justification that underlies criminal punishment.

Attempts to address the failure of corporate-criminal fines founder on two shoals.  First, there is a deep and abiding ambiguity about what it means to designate corporate fines as a failed punishment.  Second, there is a tendency to see the failure of punishment as a problem for criminal law to solve, and in doing so to treat corporate law as a fixed, immutable feature of the legal background.  This particularly is a profound mistake: the failure of corporate-criminal fines is as much a corporate-law problem as it is a criminal-law problem.

Corporate punishment stands at the vanguard of the conceptual and regulatory interplay between corporate and criminal law.  At the heart of this conflict is an interaction between drastically different regulatory functions that operate on the basis of conflicting conceptions of the corporation: corporations as persons for criminal law, and corporations as systems for corporate law.  While pluralism about the nature of corporation works well when cabined to specific legal do-mains, corporate-criminal punishment forces these domains, and their competing conception of the corporation, to reconcile or give way.

This Article explores the intimate connections between corporate law and criminal punishment — specifically, how corporate law creates the conditions for, makes necessary, and yet at the same time undermines criminal law’s efforts to punish corporations.  Appreciating these interconnections requires understanding not just the conceptual frames implicit to each area of law, but also the historical contingency of associating certain conceptions of the corporation with particular legal domains.  To be sure, this project is reform-minded: I consider what it would mean to improve criminal fines through corporate law reforms designed to redistribute the harms attendant to criminal fines in a manner that better aligns the punishment with standard penological aims.  That said, the ambition first and foremost is to reveal a blind spot in current discussions of corporate-criminal punishment by drawing attention to the conceptual intricacies that attend a practice — corporate-criminal punishment — that stitches together diametrically opposed conceptions of the corporation.

February 17, 2016 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, White-collar sentencing | Permalink | Comments (0)

Tuesday, February 16, 2016

"Texas prisons are filling up with the old and the ill — at enormous expense"

The title of this post is the sub-headline of this lengthy new Texas Observer article. Here are excerpts:

Benito Alonzo is a short, 140-pound 80-year-old. His quiet-spoken manner, drooping jowls and gray hair, trimmed in a buzz, give him the appearance of a benevolent grandfather, and indeed, he is a grandfather.  In thick-framed black eyeglasses, he bears a resemblance to the defanged and aging Henry Kissinger.  But Alonzo is neither a celebrity nor a statesman. He’s a convict who has lately grown infirm.  He says he’s been diagnosed with prostate cancer and he’s afflicted with Hepatitis C. For several years he’s been prescribed a drug called Lactulose, which Dr. Owen Murray, chief of medical affairs for the Texas penal system, says “we use for people whose livers are at the end of their lives.”...

Alonzo has been waiting since at least March for the start of a 12-week course of a new liver drug that might keep him alive for years to come. He’s been told that the treatment will cost $94,500.  Were he back on the streets, Medicare would pick up the tab.  But because federal courts have ruled that states must guarantee the safety and health of their inmates, Texas will have to pay.  Alonzo frets that because of the expense, prison bureaucrats will stall the treatment until it’s too late.

The state of Texas operates 109 prisons holding about 148,000 inmates.  Some 27,000 of them are, like Alonzo, over the age of 50.  They account for about 18 percent of the prison population, and are the fastest-growing demographic group among prisoners.  By most estimates, they are also the most expensive to keep under lock and key. According to TDCJ spokesman Robert Hurst, the average cost of housing Texas inmates is about $20,000 a year, but medical and end-of-life expenses hike that figure to some $30,000 for elderly inmates.  In other jurisdictions, the cost is even higher.  A 2012 report from the ACLU calculates the average national expense for keeping a prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.

Both demographic factors and get-tough sentencing have transformed what were once mere penal institutions into hospitals, assisted living centers and nursing homes, too.  The University of Texas Medical Branch operates a freestanding hospital in Galveston for TDCJ, which also contracts with UTMB and the Texas Tech medical school to send prisoners to 146 community hospitals.  Texas prisons now boast of “respiratory isolation rooms,” “brace and limb services” and hospice facilities in which 90 Texas inmates were eased into eternity last year.  More than 300 inmates in Texas prisons use wheelchairs, Dr. Murray says....

Alonzo’s life has been one of alternating spans of heroin addiction and confinement. He served three separate stints in prison — for theft, burglary and heroin possession — from 1958 to 1974. After his parole in 1974, allegedly under the influence of two of his brothers, Pedro and Adolfo, he delivered a pair of pistols to a warden’s trustee who then smuggled them into Huntsville’s Walls Unit. San Antonio gangster Fred Carrasco used those guns in an 11-day hostage-taking and stand-off that culminated in a shootout. Alonzo is serving a life sentence for his connection to the incident....

The state of Texas does have a process for releasing old and infirm prisoners on humanitarian parole, but the record is underwhelming.  A bureaucracy dating to 1987, the Texas Correctional office on offenders with Medical or Mental Impairments, usually named by the clunky acronym TCOOMMI, was assigned to process medically recommended intensive supervision, or MRIS, paroles.  MRIS is a way to move inmates rendered harmless by their frailty or age back into the civilian world.

TCOOMMI reports to the Texas Board of Pardons and Paroles on an inmate’s health status, leaving the final parole decision to the board.  In a February 2015 biennial report, TCOOMMI reported that of the 1,133 MRIS applications that had been submitted in fiscal year 2014, 318 had been found sufficiently meritorious for presentation to the parole board. Of those, the board had granted 67 releases — a mere 6 percent approval rate.

In a 2012 statement, TDCJ admitted that “the Parole Board’s approval rates of MRIS cases remain low.” But the board’s performance hasn’t shown signs of improvement. In the 2015 fiscal year, 445 prisoners older than 60 filed for medical paroles — but only 24 paroles were granted, all of them on the basis of infirmity, none on the basis of age. The roadblock is a provision of the law allowing the parole board to conclude that a prisoner constitutes a threat despite what doctors say....

Benito Alonzo would today have a hard time exacting any revenge or harming anybody, and whether he lives or dies is of little concern except to a coterie of kin and perhaps in the circles of the Mexican Mafia. If he dies in prison, as we must currently expect, though he’d prefer to be interred in San Antonio, his corpse will be eligible for a casket and a grave at public expense, in the prison cemetery, of course.

February 16, 2016 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Friday, February 12, 2016

Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity

This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:

Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."

He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."

It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.

It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.

To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.

Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors.  He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15.  "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources."  Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.

February 12, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, February 10, 2016

"The State of Sentencing 2015: Developments in Policy and Practice"

The title of this post is the title of this great new publication from The Sentencing Project.  Here is a summary of its contents drawn from an email I received earlier today:

[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy.  The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Sentencing:  At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.

  • Probation/Parole:  Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.

  • Collateral Consequences:  Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.

  • Juvenile Justice:  Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.

February 10, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"

The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case.  If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice.  However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker.  Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging.  Next, we consider how the use of such evidence continues to expand in the criminal trial process.  Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence.  Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

February 10, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (4)

Monday, February 08, 2016

Notable battles in Texas over local sex offender residency restrictions in small towns

A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:

While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."

At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.

But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.

The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....

Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.

The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....

Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life.  Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said.  "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.

But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.

I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism."  But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.

February 8, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

February 8, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Sunday, February 07, 2016

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)

February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, February 02, 2016

"The Irrationality of Natural Life Sentences"

The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey.  Here are excerpts:

[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life.  On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions.  This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them.  If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age.  As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.  Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed.  Both facts bump up against natural life sentences.  A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release.  Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences.  Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase.  Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles.  Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation.  Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us.  For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.  Nothing.  So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated.  Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.  Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information?  How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?...

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars.  Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information.  Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time.  But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Monday, February 01, 2016

Notable new parallel studies on comparable execution patterns in two notable states

Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:

There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing.  For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions."  These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.

February 1, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing

R_schmidt-262x272The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says."  Here are the basics (with my emphasis added):

Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana.  Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.

But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients.   He told police that "he was operating his business as a source of income," Distel said.

Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW.  Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants.  Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.

He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court....  Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing.  He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.

Schmidt is free on bond.  Kent County prosecutors will drop a second charge of manufacturing marijuana.

His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives.  After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party.  He had spent 16 years on a Grand Rapids City Commission on the West Side of town.

This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?    

But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge.  His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students.  But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.

Thoughts, dear readers?

January 30, 2016 in Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Thursday, January 21, 2016

"Why hasn’t President Obama granted clemency to a single Latina inmate?"

The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:

Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation.  Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....

On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime.  In total, I spent 17 years behind bars for a crime committed at age 21.  I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.

But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina.  Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population.  They are three times more likely to go to prison than white women.  And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007.  There’s no shortage of worthy Latina candidates for a presidential clemency.

Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston.  Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.

Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing.  Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years.  And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.

President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing.  One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well.  To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.

The War on Drugs should be called the War on Minorities.  Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children.  Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color.  Brown lives matter, too.

January 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4)

A much deeper (too deep?) dive into mens rea and its place in criminal justice reform

As regular readers should now know, debate over mens rea reforms for federal offenses has become the latest hot-button issue in the extended discussions inside the Beltway concerning statutory federal sentencing reform.  On the terms of the statutory debate in Congress and with the White House, the federal mens rea debate is quite interesting and important.  But this interesting new commentary by sociology professor William Kelly, titled "Rethinking Criminal Intent: Why 'Mens Rea' Matters," provides an even richer perspective on what deeper mens rea concerns might entail.  I recommend the full piece, and here is a taste:

I believe the debate has so far sidestepped one of the more troubling impacts of mens rea on our justice system. I agree that there is a valid question about whether citizens can be aware of all federal crimes.  But the problem associated with mens rea is much broader than just the question of whether someone is “knowingly” breaking the law. My concern is with the psychological, neurological, psychiatric, and intellectual ability or capacity of many offenders to form the required criminal intent.

Criminal intent or criminal responsibility requires awareness, conscious will, volition, and rational decision making.  There is a routine presumption, which is rarely challenged, that criminal offenders have the ability to form intent.  I challenge that presumption.  Here is why.

Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury.  Nearly 80 percent of justice-involved individuals have a substance abuse problem.  The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population.  There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.

Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law. How many lack this ability we don’t really know, because we rarely inquire about intent.  But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.

In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent.  That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement.  If the offender agrees to the terms of the agreement, it’s essentially a done deal.  That puts prosecutors in charge of sorting out who is criminally responsible and who is not.  At the end of the day, the vast majority are held responsible.

Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior.  The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.

It has also contributed to our recidivism problem. When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.

January 21, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, January 13, 2016

"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"

The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.

January 13, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Tuesday, January 12, 2016

"Wanted man sends police department selfie to replace mug shot"

The title of this post is the headline of this local article sent my way by a helpful reader.  And though one mght think the article comes from The Onion, it seems from these details that this vanity tale is not a tall one:

A wanted man in Ohio was not happy with his mug shot and decided to do something about it. Donald A "Chip" Pugh, 45, of Lima, Ohio has a warrant out for his arrest after failing to appear in court for a DUI, and is also a person of interest in several other cases including an arson and vandalism, according to the Lima Police Department Facebook page.

Despite the charges, Pugh felt the need to send a selfie of himself to the police department to replace the mug shot posted, saying: "Here is a better photo that one is terrible." The photo shows Pugh wearing a suit and sunglasses in a car with a sunroof.

In response, the department posted on it's Facebook page: "We thank him for being helpful, but now we would appreciate it if he would come speak to us at the LPD about his charges."

January 12, 2016 in Offender Characteristics | Permalink | Comments (0)

Monday, January 11, 2016

Lots of notable Atlantic reads on range of criminal justice topics

The folks over at The Atlantic always have a lot of worthy criminal justice (and other) reads, and these recent pieces struck me as especially blogworthy:

January 11, 2016 in Drug Offense Sentencing, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Friday, January 08, 2016

SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!

The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:

Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States.  A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.

Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release.   The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.

The new case is Welch v. United States; it will be argued in March.

January 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (8)

Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?

Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.

This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today.  Here is the basic backstory of this particular case:

When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause.  After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.

While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges.  The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit.  However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.

I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.

A few prior related posts:

January 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, January 03, 2016

Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air

15014616This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors.  Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:

A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon.  Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count.  Jurors likely would not be aware of the mandated sentence.

Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement.  Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.

“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”  

The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened.  The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.

According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun.  He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.  

State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said.  The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.

Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors.  DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.

Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia.  Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.

The jury that hears the case is not supposed to know Ratledge faces 120 years.  Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.

This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial.  Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.”  Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.

Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer....  DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.

Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said.  “He was trained to deal with it.”

Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.

But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.

January 3, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Saturday, January 02, 2016

"Throwaway Children: The Tragic Consequences of a False Narrative"

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

Truth be told, we are afraid for our children and we are afraid of our children.  The intersection of these disparate thoughts has produced a perfect storm.  We have created increasingly harsh sex offender registration schemes to protect our children from sexual abuse.  At the same time, fear of our children ensnares and punishes them under the very same laws that were designed to protect them.  Yet, what compels action is premised on a false narrative that includes flawed studies on recidivism rates and misguided case decisions that embraced these findings.

In this article, I explore the inherently unfair and deeply flawed practice of mandatory lifetime registration for children who commit sex offenses.  Examination reveals two fallacies in a system that condemns children to lifetime monitoring: the breadth of its ensnarement, and the presumption of a child’s continued sexual predatory behavior. Fueled by emotional rhetoric, both are tightly bound in a fundamentally false narrative that is unnecessary and wholly damaging for the child registrant.

The utility of an overly-simplified registration scheme comes with a hefty price tag: the acknowledgement that mandatory lifetime registration captures and shatters the lives of many non-dangerous children.  It is a price tag we should no longer be willing to bear.  In the face of overwhelming statistical evidence to the contrary, we must commit to changing the false narrative that children who commit sex offenses are presumed to become sexually dangerous adults.  We must commit to replacing it with a narrative that acknowledges that recidivism rates are low and that mandatory lifetime registration is both unnecessary and devastating.

January 2, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Monday, December 28, 2015

Defense argues veteran's mental problems should make him ineligible for Oregon death penalty

This interesting local article from Oregon reports on a notable and novel argument being made by defense attorneys for a defendant accused in a brutal group murder.  The story is headlined "Lawyers cite client’s military service in arguing that death penalty should not be sentencing option if found guilty," and here are the interesting details:

Army veteran A.J. Nelson stands accused of playing a central role in a brutal Eugene murder that happened three years after his squad’s armored vehicle was destroyed by a roadside bomb during a combat tour in Afghanistan.

Nelson was badly hurt in the blast, and his attorneys say there’s a link between the mild traumatic brain injury he suffered and his alleged crimes.  They are asking a judge to exclude the death penalty as a potential sentencing option in their client’s case due to his service-­related injury.  One of Nelson’s court-­appointed lawyers, Laurie Bender of Portland, said in a telephone interview that she does not know of any prior capital case in which a judge has been asked to rule on a death penalty exclusion request made on behalf of a former soldier.

Nelson, now 25, is scheduled to go to trial in March.  If he is convicted of aggravated murder in the slaying of Celestino Gutierrez Jr., prosecutors could ask a jury to sentence Nelson to death.  Nelson was one of three people arrested and charged with kidnapping and killing Gutierrez, and then using his car to carry out an armed, takeover-style bank robbery in Mapleton in August 2012.

The plot’s mastermind, David Ray Taylor of Eugene, is now on Oregon’s death row after a jury convicted him in May 2014.  The third defendant in the case, Mercedes Crabtree, is serving life in prison with the possibility of parole after 30 years.  She pleaded guilty to the murder in 2013 and agreed to testify against both Nelson and Taylor.

Nelson’s lawyers said in a recent court filing that they intend to present evidence at trial of a mental disease or defect that interfered with their client’s ability to form the intent to commit the alleged crimes.  In addition to the brain injury, the attorneys also assert Nelson has been diagnosed with post-traumatic stress disorder.

Those two issues change the way people see and react to the environment, can lead to other psychological problems and produce “a greater propensity for aberrant and criminal behavior,” Bender wrote in a Dec. 15 motion to exclude the death penalty in Nelson’s case.  “Nelson’s service-related injuries and illness do not exonerate him of the charged offenses but mitigate his culpability and the state’s standing to execute him,” Bender wrote... 

The Dec. 15 filing includes copies of awards and commendations Nelson received as a result of his military service. They include the Purple Heart, given to soldiers who are injured or killed while serving....  Nelson’s lawyers say sentencing a war veteran with PTSD to death is unconstitutional, and amounts to cruel and unusual punishment under the Eighth Amendment.  Veterans, the attorneys argue, deserve categorical death-penalty exclusions similar to those given to juvenile offenders and people with intellectual disabilities.... 

According to evidence presented at Taylor’s trial, Taylor came up with a plan to kill a stranger and take that person’s vehicle for use in a bank robbery....  Crabtree then obtained a ride from Gutierrez to Taylor’s nearby home.   Gutierrez was slain at the house, where Taylor, now 60, and Nelson are said to have dismembered his body.  Crabtree, who was 18 at the time of the incident, testified during Taylor’s trial that Nelson — at Taylor’s direction — bound Gutierrez with electrical wire and a belt, pushed a crossbow bolt through one of the victim’s ears and choked him.  

After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a metal chain around Gutierrez’s neck and pulled on it until the victim stopped breathing, Crabtree told the jury.  Crabtree said Nelson went into a brief seizure as he and Taylor dismembered the body, and came out of it confused about what he had done.

It is well-established constitutional law that defendants can present mitigating evidence of all sorts, including evidence of mental battle scars of war, to argue to a jury not to impose a death sentence. But here it seems defense attorneys are pressing for a new categorical ban on the death penaty for veterans whose service-related injuries may have played a role in their capital crimes.

Some (of many) prior related posts:

December 28, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, December 23, 2015

"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"

The title of this post is the title of this article by Robert Sanger recently posted on SSRN. 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.

December 23, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Based on SCOTUS Johnson ruling, Seventh Circuit declares statutory sentence enhancement for illegal reentry offenses

A helpful reader made sure I did not miss a notable post-Johnson vagueness ruling by a Seventh Circuit panel in US v. Vivas-Ceja, No. 15-1770 (7th Cir. Dec. 22, 2015) (available here). Here is how the panel opinion gets started:

Raul Vivas-Ceja pleaded guilty to illegally reentering the United States after removal, the maximum sentence for which is raised to 20 years if the defendant has been convicted of an “aggravated felony” prior to removal.  See 8 U.S.C. § 1326(b)(2).  As relevant here, the definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years.  The court imposed a sentence of 21 months.  Vivas-Ceja appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

The Fifth Amendment’s Due Process Clause prohibits the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.”  Id. at 2556.  In Johnson the Supreme Court held that sentencing a defendant under the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates this prohibition.  Section 16(b) is materially indistinguishable from the ACCA’s residual clause.  We hold that it too is unconstitutionally vague according to the reasoning of Johnson.  We therefore vacate Vivas-Ceja’s sentence and remand for resentencing.

December 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Monday, December 21, 2015

NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others

635603709893412683-cuomoAs reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative.  Here are just some of the details from the press release:

Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.

The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....

By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.

The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....

Agency staff will make a recommendation to the Governor to grant a pardon if:

The person was 16 or 17 at the time they committed the crime for which they were convicted.

At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.

The person has been conviction-free since that time.

The person was convicted of a misdemeanor or a non-violent felony.

The person was not originally convicted of a sex offense.

The person is currently a New York State resident.

The person has paid taxes on any income.

The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.

In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.

The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....

With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.

Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.

December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

Friday, December 18, 2015

Updating the bubbling lower-court vagueness mess six months after Johnson

Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States."  Here is how it gets started:

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive.  The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”  By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.

In the last four months, that circuit split has deepened.  And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.”  So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.

More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive.  The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause.  And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.

In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive.  I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.

In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague.  There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced.  The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.

December 18, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (5)

"Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration"

The title of this post is the title of this notable new paper available via SSRN authored by Jonathan Simon and Stephen Rosenbaum. Here is the abstract:

Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities.  New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted.  A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties.  Today, we seem to be arriving at another turn in the familiar cycle.  A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.

December 18, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, December 15, 2015

How many fundamental rights in the Bill of Rights can be uniquely regulated for adults under 21?

The answer to the question in the title of this post would seem to be "at least one" in light of an interesting ruling today by the Seventh Circuit in Horsley v. Trame, No. No. 14-2846 (7th Cir. Dec. 15, 2015) (available here). Here is the starting, ending and some in-between key passages from the panel decision:

Tempest Horsley’s application to possess an Illinois Firearm Owner’s Identification Card, commonly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does not impose a categorical ban on firearm possession for 18-to- 20-year-olds whose parents do not consent. Rather, when an applicant cannot obtain a parent or guardian signature, he or she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court....

Horsley ... maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms. We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat’l Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.... Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the FOID Card Act does not in fact ban persons under 21 from having firearms without parent or guardian consent. Having a parent or guardian signature may speed up the process, but it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available can appeal to the Director of the Illinois State Police [and any] denial is subject to judicial review....

The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother’s life. Id. at 74....

The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public safety is supported by studies and data regarding persons under 21 and violent and gun crimes....  Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state’s compelling interest in public safety....

We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest.  Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable.  The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership.  The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event.  If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment — the Director of State Police.  The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional.

December 15, 2015 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (5)

NY Times debates " What Age Should Young Criminals Be Tried as Adults?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the appropriate age for when an offender should (or should not be) brought into adult court for trial and sentencing. Here is the section's set up:

The governor of Connecticut has proposed raising the age juveniles can be tried as adults to 21 in attempts to keep more young people out of cycles of incarceration.  Michigan, one of few states that still charge 17-year-olds as adults, is also considering raising the age for eligibility of juvenile status to 18.  Is this a good idea?  What age is appropriate for young law-breakers to be tried as adults?

Here are the contributions, with links via the commentary titles:

December 15, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Examining the crimmigration connections between sentencing and deportation

An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law.  In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:

Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors.  And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result.  This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime.  Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability.  Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief.  As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.

Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history.  A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression.  In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions.  This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation.  To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability.  But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction. 

December 15, 2015 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, December 13, 2015

Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification.  Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.  The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense.  In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.  In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights.  We agree.  For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

December 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Saturday, December 12, 2015

"The Armed Career Criminal Act: Imprecise, Indeterminate, and Unconstitutional"

The title of this post is the title of this timely new piece authored by Michael Schearer and available via SSRN. Here is the abstract:

The Armed Career Criminal Act provides a mandatory minimum fifteen-year sentence enhancement for felons possessing a firearm who have previously been convicted three times of a “violent felony” or a “serious drug offense.” Despite this seemingly clear mandate, the statute has been embroiled in controversy for decades as judges struggle to determine what predicate crimes meet this standard.  The culmination of this battle resulted in the invalidation of the ACCA’s “residual clause” when the Supreme Court found that the clause violated due process in Johnson v. United States.  Nonetheless, the remaining provisions of the ACCA are still problematic.

For example, although burglary is a specifically enumerated offense that constitutes a violent felony, burglary convictions in some states have been held to be violent felonies while burglary convictions in other states have not. Likewise, offenses involving “the use, attempted use, or threatened use of physical force against the person of another” have mired the courts in similar difficulties in determining whether the particular offensive qualifies as violent felony.  Perhaps most troublesome, a finding of juvenile delinquency can be considered a criminal conviction that subjects an individual to ACCA enhancement in a subsequent adult proceeding, despite the fact that juveniles do not have the right to a jury trial. This paper argues that the ACCA is imprecise, indeterminate, and insusceptible of principled and predictable interpretation.  Absent a wholesale modification by Congress, the substantive provisions of the ACCA examined in this paper ought to be held by the courts to be unconstitutional because they deprive defendants of due process.

December 12, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (6)

Thursday, December 10, 2015

"Mass Incarceration: The Whole Pie 2015"

Pie2015The title of this post is the title of this valuable new on-line report from the Prison Policy Initiative. Everyone interested in the details essentials of modern mass incarceration ought to check out the full report (and the larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 636,000 people released every year include the people getting out of local jails?  Frustrating questions like these abound because our systems of federal, state, local, and other types of confinement — and the data collectors that keep track of them — are so fragmented.  There is a lot of interesting and valuable research out there, but varying definitions and other incompatibilities make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.  And we go deeper to provide further detail on why people in the various systems of confinement are locked up.

While the numbers in each slice of this pie chart represent a snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and therefore the many more lives that are affected by the criminal justice system.  In addition to the 636,000 people released from prisons each year, over 11 million people cycle through local jails each year.  Jail churn is particularly high because at any given moment a majority of the people in local jails have not been convicted and are in jail because they are either too poor to afford bail and are being held pretrial, or because they have just been arrested and will make bail in the next few hours or days.  The remainder of the people in jail — almost 200,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.... 

Now, armed with the big picture of how many people are locked up in the United States in the various types of facilities and for what offenses, we have a better foundation for the long overdue conversation about criminal justice reform.  For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, and it demonstrates why the policymakers and advocates who see ending the War on Drugs as a politically acceptable first step towards ending mass incarceration must take great care that their actions both constitute actual progress for people with drug offenses and do not make further reforms more difficult.  Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward.

  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?

  • Do policymakers and the public have the focus to also confront the geographically and politically dispersed second largest slice of the pie: the 3,283 local jails? Given that the people behind bars in this country are disproportionately poor and shut out of the economy, does it make sense to lock up millions of people for a few days at a time for minor offenses? Will our leaders be brave enough to ask the public to support smarter investments in community-based drug treatment and job training? Or will they support the continued use of jails as mass incarceration’s front door?

December 10, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, December 07, 2015

Notable new BJS data on veterans in state and federal prisons and local jails

As reported in this official press release, titled "Fewer Veterans In Prison And Jail In 2011-12 Than 2004," the Bureau of Justice Statistics released a new report on incarcerated vets. Here are excerpts from the first page of this detailed, data-heavy report:

In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities. This represented a decrease from the estimated 206,500 incarcerated veterans (9% of the total incarcerated population) in 2004, and was consistent with the decline in the number of veterans in the U.S. general population. While the number of veterans in prison and jail increased along with growth in the overall number of persons incarcerated between 1980 and 2008, the proportion of incarcerated veterans has declined, down from an estimated 24% of all persons incarcerated in state prison and jail in 1978 (federal inmates were not surveyed in 1978).

In 1978, 19% of U.S. adult residents, 24% of prisoners, and 25% of jail inmates were military veterans. By 2011–12, veterans accounted for 9% of the general population, 8% of state and federal prisoners, and 7% of jail inmates....

The total incarceration rate in 2011–12 for veterans (855 per 100,000 veterans in the United States) was lower than the rate for nonveterans (968 per 100,000 U.S. residents). „

Non-Hispanic black and Hispanic inmates made up a significantly smaller proportion of incarcerated veterans (38% in prison and 44% in jail), compared to incarcerated non-Hispanic black and Hispanic nonveterans (63% in prison and 59% in jail). „

A greater percentage of veterans (64%) than nonveterans (48%) were sentenced for violent offenses....

„ More than three-quarters (77%) of incarcerated veterans received military discharges that were honorable or under honorable conditions.... „

„ A quarter of veterans in prison (25%) and less than a third of veterans in jail (31%) reported that they had been in combat while in the military. „

About half of all veterans in prison (48%) and jail (55%) had been told by a mental health professional they had a mental disorder. „ Incarcerated veterans who saw combat (60% in prison and 67% in jail) were more likely than noncombat veterans (44% in prison and 49% in jail) to have been told they had a mental disorder.

December 7, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir.  Here are excerpts: 

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, December 01, 2015

You be the judge: what federal sentence for beloved elderly preist who embezzled half-million dollars?

Fatheredwardbelczakashxjpg-79869763239fae48This local article, headlined "Dozens ask judge for mercy in sentencing of embezzling Detroit-area Catholic priest," provides the interesting backstory for an interesting federal sentencing scheduled for late today. Here are the basics:

A beloved Catholic priest in Troy was scorned when allegations came forth that he embezzled more than $500,000 from church coffers.  Rev. Edward A. Belczak, 70, admitted to diverting $572,775 collected by the church, most of which he kept in a secret private bank account.  He also spent $109,570 to purchase a Florida condo in 2005.

Despite the admissions, dozens of people, including many of the parishioners he defrauded, have come forward to ask for a lenient sentence on behalf of the priest who headed St. Thomas More church in Troy from 1984 until 2013. He's scheduled to be sentenced Tuesday.

Belczak pleaded guilty to mail fraud as part of the plea agreement. In exchange, the U.S. Attorneys Office dismissed more serious charges and asked U.S. District Judge Arthur J. Tarnow to sentence Belczak to just over three years in prison.

Attorney John J. Morad, a friend and supporter of the priest, thinks any prison time is too much. "He made a terrible mistake and I know that he is embarrassed, ashamed and humiliated by the fact that he disappointed so many people who have grown to love and respect him for the work he has done among the people," Morad wrote in a letter to the judge. " ... I know he has confessed his sins and I'm certain God has forgiven him. Should we do anything less?"

The defense has asked for home detention, while sentencing guidelines call for a prison term of between 33 and 41 months.  The theft from the church is believed to have occurred between 2004 and 2012.

UPDATE This Detroit Free-Press article about the sentencing of Father Belczak report on the basic outcome via its headline: "Embezzling priest gets 27 months: 'It's .. my destiny'"

December 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12)

Sunday, November 29, 2015

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

November 29, 2015 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, November 25, 2015

"The Gaping Hole in the Prison Early Release Program: Mental Health Care"

MentalhealthThe title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison."  Here are excerpts:

In Oc­to­ber, the Obama ad­min­is­tra­tion an­nounced the early re­lease of more than 6,000 fed­er­al in­mates.  While a surfeit of data on Amer­ica’s over-in­car­cer­a­tion ap­pears to sup­port the ad­min­is­tra­tion’s ra­tionale for the early-re­lease of in­mates serving time for non­vi­ol­ent of­fenses, a cru­cial as­pect went un­ad­dressed in the hoopla sur­round­ing the announce­ment: What kind of men­tal-health re­sources are avail­able in com­munit­ies for in­mates des­ig­nated for early re­lease?

And, across the board, as the ad­min­is­tra­tion and ad­voc­ates un­der­take strategies to ad­dress mass in­car­cer­a­tion, what is the fate of the es­tim­ated hun­dreds and thou­sands of in­mates in Amer­ic­an jails and pris­ons who are men­tally ill?

The U.S. Sen­ten­cing Com­mis­sion’s early-re­lease pro­gram put a point on grow­ing na­tion­al aware­ness about the implcations of Amer­ica’s vast in­car­cer­a­tion uni­verse.  It res­ul­ted from a bi­par­tis­an ef­fort to re­make harsh drug-re­lated sen­ten­cing guidelines that had spurred the mass in­car­cer­a­tion of mostly black and Latino men be­gin­ning in the mid-1980s.  By year end 2014, 2.2 mil­lion people were locked up in Amer­ica’s jails and pris­ons, rep­res­ent­ing the highest rate of in­car­cer­a­tion among de­veloped na­tions world­wide.  The pop­u­la­tion of in­mates who are sched­uled to re­ceive early re­lease is com­posed primar­ily of drug of­fend­ers who will be un­der the watch of pro­ba­tion of­ficers after they return to ci­vil­ian life, ac­cord­ing to Sally Yates, Deputy U.S. At­tor­ney Gen­er­al.

But the ab­sence of a com­pre­hens­ive plan to serve the men­tal health needs of in­mates in the early-re­lease pro­gram high­lights a long-stand­ing con­cern among pris­on re­form ad­voc­ates: the tight in­ter­sec­tion of drug or al­co­hol ab­use, men­tal ill­ness, and in­car­cer­a­tion.  Men­tal health ex­perts cite the “co-oc­cur­ring” pres­ence of drug or al­co­hol ab­use and men­tal ill­ness among in­mates as a ma­jor chal­lenge, one that makes both the daily pro­cess of safely hous­ing pris­on­ers par­tic­u­larly com­plex, and which also com­plic­ates the re­turn of in­mates to com­munit­ies....

A 2014 re­port by the Na­tion­al Re­sources Coun­cil (NRC) showed that men­tal ill­ness in the na­tion’s jails and pris­ons is per­vas­ive.  Pro­duced by an in­ter­dis­cip­lin­ary com­mit­tee of re­search­ers, the re­port ex­amined data from cor­rec­tions-department sur­veys and un­covered the pres­ence of “men­tal-health con­cerns” among 64 per­cent of in­mates in the nation’s jails, 54 per­cent of state pris­on­ers, and among 45 per­cent of in­mates at fed­er­al fa­cil­it­ies.... Con­sequently, a grow­ing num­ber of crim­in­al-justice and pris­on­er-re­hab­il­it­a­tion ex­perts are fo­cus­ing in on men­tal health as a key compon­ent of Amer­ica’s mass in­car­cer­a­tion, both as a primary in­stig­at­or of im­pris­on­ment, and also as a ma­jor challenge that must be ad­dressed in shap­ing re­lease policies and pro­to­cols....

Amer­ica’s jour­ney on the path to be­com­ing the de­veloped na­tion with the most in­car­cer­ated people in the world — and the na­tion where pris­ons and jails are de facto men­tal-health catch­ments — gained steam with the “War on Drugs,” a col­lec­tion of re­gion­al and fed­er­al tough-on-crime policies and harsh sen­ten­cing laws that es­cal­ated dur­ing the 1980s as crack co­caine use in urb­an loc­ales drove up vi­ol­ent-crime rates and gen­er­ated nightly news cov­er­age of com­munit­ies in crisis.  But the spark that lit the fire un­der mass in­car­cer­a­tion in the U.S. was struck long be­fore the mid-1980s.

Be­gin­ning in the 1960s, states began rad­ic­ally re­du­cing tax­pay­er-fun­ded men­tal-health hos­pit­als and in­pa­tient cen­ters, re­leas­ing hun­dreds of thou­sands of men­tally ill or chal­lenged pa­tients in­to com­munit­ies.  Known as deinstitutionala­tion, the pro­cess was deemed ne­ces­sary by state law­makers and gov­ernors in or­der to shut­ter hos­pit­als that of­ten resembled 19th-cen­tury “snake pits” — large, poorly run fa­cil­it­ies in which thou­sands of vul­ner­able men­tally ill citizens were ware­housed, un­der-served, and for­got­ten....

Dur­ing the same era, from Cali­for­nia to New York, a per­fect storm of factors af­fect­ing in­car­cer­a­tion rates loomed and then broke: na­tion­wide, thou­sands of res­id­ents who needed men­tal health at­ten­tion but couldn’t af­ford private care or ac­cess af­ford­able ser­vices turned to self-med­ic­at­ing be­ha­vi­or — through drug or al­co­hol use — which led to crim­in­al activ­ity, which in turn brought them in­to the crim­in­al-justice sys­tem at the very mo­ment when judges and elec­ted of­fi­cials coast to coast pushed for severe sen­ten­cing of those in­volved in drug-re­lated activ­ity.

In city after city, those without money to af­ford private drug treat­ment or men­tal-health care — or private at­tor­neys — were swept in­to jails and pris­ons, some­times fa­cing terms of a dec­ade or longer un­der new man­dat­ory-min­im­um sen­ten­cing rules for pos­sess­ing or selling small or mod­er­ate amounts of nar­cot­ics.  A raft of new sen­ten­cing guidelines nar­rowed av­en­ues for pro­ba­tion for those with mul­tiple drug of­fenses.  These ‘three strikes’ laws, as they came to be known, were ap­proved by a dec­ade’s worth of Con­gress mem­bers, as well as by Demo­crat­ic and Re­pub­lic­an pres­id­ents.

Thou­sands of low-level de­fend­ants, many suf­fer­ing from emo­tion­al- or men­tal-health chal­lenges that they had been "street treat­ing" by us­ing il­leg­al drugs, then pro­duced the co-oc­cur­ring dy­nam­ic of in­di­vidu­als strug­gling with men­tal ill­ness and drug or al­co­hol ad­dic­tion.  Plunged in­to state or fed­er­al pen­it­en­tiar­ies, thou­sands re­ceived poor treat­ment or no treat­ment, and their men­tal health de­teri­or­ated.  In some in­stances, men­tally ill in­mates fell prey to vi­ol­ence from oth­er in­mates, harmed or killed them­selves, or de­veloped deep­er drug or al­co­hol ad­dic­tions.  A Feb­ru­ary study from the Vera In­sti­tute for Justice found that 83 per­cent of jail in­mates in the U.S. do not re­ceive men­tal-health services or treat­ment after be­ing ad­mit­ted....

Justice De­part­ment of­fi­cials and some state judges have star­ted to dis­play act­iv­ist tend­en­cies, for­cing loc­al jur­is­dic­tions to be­gin find­ing solu­tions for the grow­ing num­ber of men­tally ill in­mates with­in the vast net­works of loc­al ­correc­tion­al fa­cil­it­ies.  In Au­gust, for ex­ample, Los Angeles County agreed to im­ple­ment ma­jor re­forms aimed at improv­ing the con­di­tions of men­tally ill in­mates fol­low­ing strong pres­sure from DOJ....  [I]n the state that came to em­body the ac­cel­er­a­tion of mass in­car­cer­a­tion, a blue­print is tak­ing shape for achiev­ing hu­mane and fisc­ally re­spons­ible out­comes for men­tally ill people who come in­to con­tact with the crim­in­al-justice sys­tem.

November 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 19, 2015

Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses

As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:

Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.

Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."

Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders.  "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway.  "What a gift to have such a professional windfall fall in your lap," Pratt said.

Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."

Prior related posts:

November 19, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (34)

"Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention"

The title of this post is the title of this interesting-sounding paper available via SSRN authored by Adam Shniderman and Lauren Solberg. Here is the abstract:

Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime.  A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system.

For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population.  Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders.  However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention.  This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.

November 19, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (3)

Wednesday, November 18, 2015

"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"

The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns.  Here are excerpts:

Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus.  After less than two years in effect, the controversial law must be renewed, or it will expire.  While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.

“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.”  Last year, Walker went into labor at home....  "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”

He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault.  But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road.  There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.

The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers.  It came from law enforcement and legislators.  In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.

Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....

Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups.  But she says she’s not hearing great alternatives from the naysayers.  “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”

It isn't clear the fetal assault law is doing what it was supposed to do.  In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state.  Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year.  And yet the mountainous region is still home to the largest number of babies being born needing to detox.

State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute.  She says it needs more time and should be renewed.  “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.

Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky.  Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.

"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport.  Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.

Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room.  “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution.  While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.

November 18, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Tuesday, November 17, 2015

"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"

Screen-Shot-2015-11-11-at-12.11.33-PMThe title of this post is the title of this notable new report from published by the Center for Justice at Columbia University.  Here is the report's executive summary:

Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.

All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.

A series of papers emerged from the symposium.  Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field.  While the authors differ in opinion over some issues, they share several key observations and recommendations:

In New York State, the aging prison population continues to rise.  The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population.  The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.

Prisons were not meant to be nursing homes and are poorly equipped to house an aging population.  Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.

Incarcerating the elderly has serious financial implications.  The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.

The explosion in the aging prison population undermines basic fairness, justice, and compassion.

The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies.  Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.

Public safety does not require that we keep aging people in prison when they pose no risk to society.  People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.

There are several measures New York State should implement to reform parole policy and release aging people from prison.  These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.

We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix.  We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents.  The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.

November 17, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, November 16, 2015

Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else.  But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term.  But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain.  Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions.  Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler.  Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives.  But there's a difference between elusive remedies and illusory ones.  For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve.  If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions.  Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

November 16, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sentencing prominent federal defendants: should sex offender Jared Fogle or Sunwest CEO fraudster get longer prison term?

Two notable (and notably different) federal prosecutions are to reach sentencing this week in Indiana and Oregon.  Though the crimes and defendants are not similar, the range of sentences being requested by prosecutors and defendants in these two cases are comparable.  Via press reports, here are the basic elements of these two federal cases (with links to some underlying documents):

Jared Fogle, who pleaded guilty to federal sex offenses, "Jared Fogle asks for 5-year prison term in court filing before sentencing":

Jared Fogle's attorneys asked for a five-year prison term for the former Subway restaurant pitchman in a court filing before his sentencing Thursday.  The filing says Fogle will speak publicly during his hearing before Judge Tanya Walton Pratt in federal court in Indianapolis.  "He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him and, for all practical purposes, destroyed the life he worked to build over the last 18 years," the filing says.

Fogle has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.  The prosecutor is asking for 12½ years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. attorney had agreed to seek in a plea bargain struck with Fogle in August. Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

The defense filing acknowledges that the advisory sentencing guideline is 135 to 168 months, but said it is "entitled to little weight because it is the result of a flawed and widely criticized set of … provisions."

Jon Michael Harder, who pleaded guilty to federal fraud offenses, "Former Sunwest CEO, facing sentencing for $130 million fraud, apologizes for 'carnage and problems'":

U.S. prosecutors accuse former Sunwest Management CEO Jon Michael Harder of orchestrating the biggest investment fraud in Oregon history, and they are asking a judge to sentence him to 15 years in prison.  IRS criminal investigators say that as the head of a vast network of assisted living centers, he helped make off with $130 million from 1,000 investors between 2006 and 2008.

Harder will go before a judge Monday morning for a rare two-day sentencing hearing before U.S. District Judge Michael H. Simon, who found him guilty last January of mail fraud and money laundering.  

Harder's legal team, seeking leniency, is asking Simon to sentence him to five years in prison. Assistant Public Defender Christopher J. Schatz took the unusual step of filing a court declaration that describes his client as possibly suffering from undiagnosed post-traumatic stress disorder from the emotional clubbing he took after Sunwest's failures.  "Many of the investors in Sunwest were family members, family friends and members of the Seventh Day Adventist community," Schatz wrote. "Mr. Harder feels that he let all the investors down, that he failed them all."  

Harder, too, filed a court paper — a letter of apology to Simon.  "I feel incredibly badly for all the carnage and problems that I have caused," he wrote. "I have obsessed, over the last 7 ½ years, about what I should have or could have done differently in operating Sunwest."

government sentencing memo paints Harder as a chief executive who burned through corporate cash as if it were his own. He drove luxury cars, owned six homes, and once flew about 100 people to Alaska — most of them Sunwest employees — to go fishing.

Intriguingly, it seems that the federal sentencing guidelines would call for a much, much longer sentence for the fraudster than the sex offender: while Jared Fogle appears to be facing a guideline sentencing range of roughly 12 to 14 years, Jon Harder appears to be facing a guideline sentencing range of life without the possibility of parole.

November 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)