Tuesday, November 3, 2015

Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution

As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:

Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.

The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....

Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....

Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.

He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.

The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.

Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.

Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.

November 3, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Banishing Solitary: Litigating an End to the Solitary Confinement of Children in Jails and Prisons"

The title of this post is the title of this notable new paper by Ian Kysel available via SSRN.  Here is the abstract:

The solitary confinement of children is remarkably commonplace in the United States, with the best available government data suggesting that thousands of children across the country are subjected to the practice each year. Physical and social isolation of 22 to 24 hours per day for one day or more, the generally accepted definition of solitary confinement, is used by juvenile detention facilities as well as adult jails and prisons to protect, punish and manage children held there.

The practice is neither explicitly banned nor directly regulated by federal law. Yet there is a broad consensus that the practice places children at great risk of permanent physical and mental harm and even death, and that it violates international human rights law. Policymakers and judges in the U.S. are beginning to reevaluate the treatment of children in the adult criminal justice system, drawing from new insights and old intuitions about the developmental differences between children and adults. This welcome trend has only recently begun to translate into any systematic change to the practice of subjecting children to solitary confinement in adult jails or prisons, with significant reform in New York City at the leading edge.

Despite the beginnings of a trend, there have been few legal challenges to the solitary confinement of children and there is a consequent dearth of jurisprudence to guide advocates and attorneys seeking to protect children in adult facilities from its attendant harms through litigation – or policymakers seeking to prevent or eliminate unconstitutional conduct. This article helps bridge this significant gap. It contributes the first comprehensive account of the application of federal constitutional and statutory frameworks to the solitary confinement of children in adult jails and prisons, with reference to relevant international law as well as medical and correctional standards. In doing so, this article seeks to lay the groundwork for litigation promoting an end to this practice.

November 3, 2015 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (4)

Controversial marijuana reform initiative loses big in Ohio

As reported in this local article, headlined "Ohioans reject legalizing marijuana," the controversial ballot initiative which sought to convince Ohio voters to go from blanket marijuana prohibition to full legalization is losing badly as the votes get counted tonight. Here are the basics:

Ohio voters strongly rejected legalizing marijuana today, despite a $25 miillion campaign by proponents. The Associated Press called State Issue 3 a loser about 9:30 p.m., 30 minutes after the first results were released by Ohio Secretary of State Jon Husted’s office.

The issue to legalize pot for recreational and medical use is going down 65 percent to 35 percent, losing in all 88 counties with more than 48 percent of the statewide vote counted.

“At a time when too many families are being torn apart by drug abuse, Ohioans said no to easy access to drugs and instead chose a path that helps strengthen our families and communities,” said Gov. John Kasich in a statement.

Curt Steiner, campaign director for Ohioans Against Marijuana Monopolies, said, “Issue 3 was nothing more and nothing less than a business plan to seize control of the recreational marijuana market in Ohio ... Never underestimate the wisdom of Ohio voters. They saw through the smokescreen of slick ads, fancy but deceptive mailings, phony claims about tax revenues and, of course, Buddie the marijuana mascot.”

However, State Issue 2 is passing 53 percent to 47 percent. Some counties voted against Issue 2, including Athens County. Issue 2 is an amendment proposed by state lawmakers to make it more difficult for special economic interests to amend the Ohio Constitution in the future.

From the very start of the initiative effort, I kept repeating my view that the framing of any marijuana reform proposal in Ohio would likely determine its fate.  Specifically, I thought that if voters saw Issue 3 as a referendum on blanket marijuana prohibition, the issue would have a chance to prevail; if it was seens as a referendum on a corporate take-over of the marijuana movement, it was sure to lose.  Based on the mainsteam and social and activist coverage, it seems many voters who might have supported ending prohibition were too turned off by the ResponsibleOhio model to vote yes on Issue 3.

Because it seems like Issue 3 is going down by a very significant margin, I suspect (and fear) that this result in bellwether Ohio will significantly energize both local and national opponents of marijuana reform.  Indeed, here is the text of an email I already received from SAM, the leading anti-marijuana reform group:

We did it! Despite a flood of celebrity endorsements and being outspent 15 to 1, Ohio voters weren't fooled. Tonight, they defeated legalization by one of the widest margins of victory any marijuana measure has seen in decades.

This is huge! This proves that our movement is thriving -- and we have many more victories in front of us.

A heartfelt thanks to Ohioans Against Marijuana Monopolies, which our SAM Action Ohio affiliate was a big part of, for delivering this important victory tonight.  It proved that legalization is not inevitable, and we will take every grain of knowledge we learned from this campaign into other states moving forward.

I will have lots more coverage and analysis of this notable Ohio result and its local and national implications at Marijuana Law, Policy and Reform in the days ahead.

November 3, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

"Death Penalty Opponents Split Over Taking Issue to Supreme Court"

The title of this post is the headline of this interesting new New York Times article by Adam Liptak.  Here is how the piece gets started:

In the long legal struggle against the death penalty, the future has in some ways never looked brighter. In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.

But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.

“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.

But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.

The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion. Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.

November 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big

FrontAs students in my various classes know well, I have been more than a bit obsessed over the controversial campaign seeking to bring dramatic marijuana reform to my home state of Ohio this year.  My interest in this campaign is not only because I have a front-row seat on all the action and know a lot of the leader players, but also because (as hinted in the title of this post) I believe national marijuana prohibition throughout the United States will be functionally dead if a controversial marijuana legalization proposal can win in a swing state in an off-off-year election with nearly all the state's establishment politicians working overtime to defeat it.  

Stated more simply, if a majority of Ohio voters today vote to repeal marijuana prohibition in the state, I think it becomes all but certain that national marijuana prohibition will be repealed before the end of this decade.  These realities led me to start thinking about the famous lyrics of one of my all-time favorite songs, American Pie.  So, at the risk of making light of a serious issue on a serious day, I will carry out these themes by doing a poor man's Weird Al Yankovic:

A long, long time ago
I can still remember how that mary jane used to make me smile
And I knew if Ohio had a chance
We could make those politicians dance
And maybe they'd be hoppy for a while
 
But February made me shiver
With every complaint drug warriors delivered
Bad news in the reform plan
I couldn't be sure who was the man
 
I can't remember if I cried
When I read about the monopolies tried
But something touched me deep inside
The day the marijuana prohibition died

So bye, bye, American Pot Prohibition

Drove my Prius to the polls
but the polls gave me confusing choices
And them good ole boys were drinking whiskey 'n rye
Singin' this'll be the day prohibition dies
This'll be the day prohibition dies

Whatever my students and all other Ohioans think about these issue, I sincerely hope everyone goes out to vote so that we get a large and representative indication of what Buckeyes really think about thse matters.

November 3, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)

"The Bumpiness of Criminal Law"

The title of this post is the title of this notable paper by Adam Kolber now available via SSRN. Here is the abstract:

Criminal law frequently requires all-or-nothing determinations.  A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.

Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs.  An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output.  By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects.  Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements.  While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.

November 3, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans

Louisiana-prisons-jailsThis local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:

Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.

In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.

Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state.  He noted that Texas could be a model for the types of reform that should be implemented here.

Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate.  There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state.  The prison system costs Louisiana nearly $350 million a year.  It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.

“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday.  He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.

He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate.  He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot.  “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.

Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”

Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population.  He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”

November 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"The Retroactivity Roadmap"

The title of this post is the title of this notable new essay by William Berry III available via SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment.  Three years later, the question remains whether the holding in Miller applies retroactively.  As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural.  Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective.  This term, the Court will take up that question in Montgomery v. Louisiana.

This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics.  This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content.  As a result, Miller should apply retroactively.  Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges.  Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.

November 3, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, November 2, 2015

Prez Obama takes criminal justice reform tour to New Jersey, but Gov Christie not pleased by visit

This Reuters article, headlined "Obama pitches help to ex-criminals, draws N.J. governor's ire," details notable talk from notable officials about criminal justice reform today in the Garden State.  Here are the particulars:

President Barack Obama announced new measures to smooth the integration of former criminals into society but his visit to New Jersey on Monday irked the state's governor, a struggling Republican presidential candidate.

Obama, a Democrat who has made criminal justice reform a top priority of his final years in office, praised organizations in Newark for their efforts to help those who have served prison terms to reintegrate into civilian life. "We've got to make sure Americans who have paid their debt to society can earn their second chance," Obama said in a speech at Rutgers University in Newark, a city of about 280,000 that has grappled for decades with poverty and high rates of violent crime.

Obama said he was banning "the box" that applicants had to check about their criminal histories when applying for certain federal jobs. He praised companies such as Wal-Mart, Target, Koch Industries, and Home Depot for taking similar measures in the private sector. The president noted that Congress was considering similar measures.

But New Jersey Governor Chris Christie, who is failing to gain traction in his bid for the Republican Party's nomination to run for the White House in the November 2016 election, said Obama's policies had hurt police departments nationwide. "(Obama) does not support law enforcement. Simply doesn't. And he's going to come today to New Jersey in a place where, under my tenure, we have reduced crime 20 percent and reduced the prison population 10 percent," Christie said on MSNBC TV. "It's a disgrace that he's coming to New Jersey today to take credit for this stuff when he's been someone who's undercut it."

The new steps unveiled by the White House included up to $8 million in federal education grants over three years for former inmates as well as new guidance on the use of arrest records in determining eligibility for public and federally assisted housing....

White House spokesman Josh Earnest questioned the reasoning behind Christie's less friendly welcome on Monday. “Governor Christie’s comments in this regard have been particularly irresponsible, though not surprising for somebody whose poll numbers are closer to an asterisk than they are double digits. Clearly this is part of the strategy to turn that around,” Earnest said.

For more on the specific proposals annouced by President Obama today, this official White House Fact Sheet provides lots of details under the heading "President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly- Incarcerated."  

Some analysis of the Prez's proposals can be found in this Atlantic piece with this lengthy headline: "Obama's Plan to Help Former Inmates Find Homes and Jobs: Between 40 and 60 percent of ex-offenders can’t find work. Will the president’s new initiative help?"

November 2, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform

The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):

Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens.  This action is not the result of legislation passed by the people’s elected representatives in Congress.  Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.

In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences.  The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses.  Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.

The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety.  Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.

There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget.  However, the Sentencing Commission is going about sentencing reform the wrong way.  Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.

The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues.  If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly.  Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....

Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.

That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible.  It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences.  These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.

Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.  Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early.  This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....

While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.

The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety.  Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.  

That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population.  Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget.  The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding.  Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.  

November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Sentencing Reforms Need Voices From Victims: Amid the bipartisan effort to fix a broken criminal justice system, a key perspective is missing."

The title of this post is the full headline of this notable National Law Journal op-ed authored by Mary Leary. I recommend the piece in full, and here are excerpts:

The Senate Judiciary Committee last month advanced, on a bipartisan basis, the historic Sentencing Reform and Corrections Act of 2015.  This act has been described as the most significant criminal justice reform in decades.  It proposes to drastically alter the sentences of thousands of criminals, recalibrating the entire structure of our criminal justice system.

While the Judiciary Committee's recent move is good news for sentencing reform, the news about the process of this bill is more mixed. It is critical that different stakeholders with distinct perspectives weigh in on this landmark legislation before it is passed.  Yet, guess how many crime victims organizations were called to testify before the Senate Judiciary Committee?  Zero....

As evidenced by President Barack Obama's recent meetings with the Major Cities Chiefs of Police and the International Association of Chiefs of Police, some policymakers understand that, to achieve legitimacy, the reforms need to be more than "bipartisan."  They must be a product of dialogue with all stakeholders, not just offenders' organizations.

Yet, apparently no one in the Senate thought it appropriate to hear what victims have to say about criminal justice reform.  Last year, about 1.17 million violent crimes and nearly 8.3 million property crimes were reported to law enforcement.  The victims of that criminal activity are the people who bear the direct and secondary harm.

That is not all. It is not just that victims were not included as witnesses; they were barely even mentioned.  A review of the written testimony of all nine witnesses indicates that the word "victim" or any derivative thereof was used a mere nine times....

And if victim groups have concerns, would not the bill become stronger if they were considered and perhaps included in its drafting?  Although prosecutorial figures did testify, it is a mistake to assume they speak for victims.  Indeed, that is how it should be, as the prosecutor's role is to represent the entire community and do justice, not to act as a victim's personal attorney.

A functioning criminal justice system must have legitimacy and a reformed fair sentencing scheme advances that goal.  But a criminal justice system loses some legitimacy if it does not hear the voice of a major stakeholder — the victims.

The president and Congress need to reach out to victims. The president has gone all the way to Oklahoma to meet with prisoners. Perhaps he should take a walk in Washington and meet with one of the victims of the over 40,000 crimes that occurred there in 2014 or speak to the families affected by a homicide rate that has increased over 47 percent since last year.

Similarly, in 2004, Congress passed the Crime Victims Rights Act. This act afforded victims the right to be "reasonably heard" at public court proceedings.  This same Congress should recognize that right in this context and allow victims to be "reasonably heard" regarding this major legislation.  Not only is it reasonable to listen to crime victims, but it is necessary for any criminal justice reform to be legitimate.

November 2, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Looking forward to big CKI summit "Advancing Justice: An Agenda for Human Dignity and Public Safety"

Though the biggest crimnal law reform story I am following this week concerns Ohioians voting on a controversial marijuana reform initiative (recent coverage here), right after election day I will have the honor and privilege of attending another big criminal justice event.  Specifically, Wednesday I am heading down to the Big Easy to attend a big summit on criminal justice and policing reform that the Charles Koch Institute will be hosting November 4-6.

This big event is titled "Advancing Justice: An Agenda for Human Dignity and Public Safety," and this list of speakers and this schedule of panels reveal what an amaazing gathering the event looks to be. This webpage provides this description of what the event is all about:

Criminal justice and policing reforms are gaining momentum with concrete gains at the state and federal level.  However, there is much more that needs to be done.

The Charles Koch Institute is holding a summit to help identify the next set of priorities, and to support a broad coalition that can help address barriers to further progress. We want to bring together the leading figures in this movement: policy makers, academics, think tanks, community activists, non-profits, elected officials, religious groups, etc., and together propose real, meaningful, lasting solutions. We are committed to supporting the best ideas and lending our voice to the national conversation for an advancement in human dignity and greater public safety.

The Charles Koch Foundation is a proud supporter of the summit.

November 2, 2015 in Who Sentences? | Permalink | Comments (2)

"Will the Roberts court abolish capital punishment?"

The question in the title of this post is the headline of this recent lengthy article in The Hill.  Here are excerpts:

The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.

The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term. “There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”

Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory.  The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections.  While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.

“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”...

But even conservative Justice Antonin Scalia says it could happen. During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times....

The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.

President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment. The White House said Obama was “influenced” by the pope’s remarks in Washington.  And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.”  He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”...

Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty.  Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support.  The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008....

Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years.  “It’s not something that is a new idea,” he said.  “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”

Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states.  “It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”

For now, the court has only agreed to hear questions on procedural aspects of death penalty cases.  On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia.  Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment. “Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”

November 2, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

All the sentencing news that's fit to print in New York Times

I am to very pleased to see that the two lead stories in today's national section of the New York Times are two criminal justice reform stories that are close to my heart.  Here are the headlines and links:

In addition, inspired by the Supreme Court hearing this morning a capital case involving questionable jury selection, the New York Times also has this notable editorial and op-ed article on the topic:

November 2, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, November 1, 2015

The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015

I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague.  But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects.  Let me explain my thinking here.

1.  Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease.  That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence.  Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.

2.  The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague.  But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation.  Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language. 

3.  Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years.  Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA.  If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate.  (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)

4.  The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):

The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases.  To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.

5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)

I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough.  And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds. 

November 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

"Bar None? Prisoners' Rights in the Modern Age"

The title of this post is the title of this notable paper by Daniel Medwed available via SSRN. Here is the abstract:

The American public is perhaps more sensitized to the flaws in our criminal justice system than at any time in our history.  News accounts of wrongful convictions, racial profiling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation — upwards of 1.5 million people housed in state or federal prisons according to the Bureau of Justice Statistics.  To some extent, this period of questioning and reflection has produced gains; we have witnessed a modest shift away from mandatory minimum sentencing and toward the decriminalization of some narcotics.  Parole boards have shown a rising awareness that inmates’ claims of innocence should not be held against them in their release decisions. Even more, some states — most notably, Michigan — have formulated innovative re-entry programs to assist prisoners in making the perilous transition from their cell blocks to residential and commercial blocks in neighborhoods throughout the country.  These events have prompted some observers to envision an end to mass incarceration in the United States.

Yet this vision is a mirage.  Despite all of the talk about criminal justice reform and “decarceration,” we still live in a country where large swaths of people, especially young men of color, languish behind bars or under the restrictions of probation, parole, or some other form of community supervision.  This is likely to remain the case absent dramatic changes to policing practices, wealth inequalities, and the lobbying tactics of corrections officials and affiliated industries.  The danger with the decarceration rhetoric is that it deflects attention from those who continue to suffer under horrid conditions of confinement.  Indeed, this Symposium explores the contemporary prison experience against this complicated backdrop and asks a fundamental question: what are the gravest problems that inmates face during an era in which many people might naively think that the situation has improved?

November 1, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

SCOTUS back in action with week full of criminal law arguments

The US Supreme Court Justices return from a few weeks traipsing around the country (see SCOTUSblog mapping) to hear oral arguments this week in six cases, four of which involve criminal law issues.  Drawing from this SCOTUSblog post by Rory Little, here are summaries of the criminal cases the Court will consider this week:

Monday, Nov. 2

Foster v. Chapman:  Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky when state prosecutors struck all four prospective black jurors, offering “race-neutral” reasons, and it was later discovered that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) circled the word “BLACK” on the questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.”  (Georgia Supreme Court)

Tuesday, Nov. 3

Lockhart v. United States:  Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has 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,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)

Torres v. Lynch:  Whether, for immigration removal purposes, a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. (Second Circuit) 

Wednesday, Nov. 4 

Bruce v. Samuels:  Whether the twenty-percent-of-income “cap” in the Prison Litigation Reform Act (28 U.S.C. § 1915(b)(2)), requiring in forma pauperis prisoners to still pay something toward the fee for filing federal cases, applies on a “per case” or “for all cases” basis. (D.C. Circuit)

November 1, 2015 in Offense Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"In Heroin Crisis, White Families Seek Gentler War on Drugs"

The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought.  Here are excerpts from the piece:

The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.

“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.

Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.

The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.

Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.

And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.

“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African­-Americans for a more empathetic approach were largely ignored.  “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools.  “But,” she added, “one cannot help notice that had this compassion existed for African­-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

November 1, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Saturday, October 31, 2015

Might California get two completing capital punishment propositions to consider in 2016?

The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:

A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals.  The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California.  The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.

A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment.  Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.

Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years.  San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.

Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement.  The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.

Friday's news conference came a few days before the state plans to release a revised method of execution.  The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006.  A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....

The measure announced Friday is similar to one that death penalty supporters launched more than a year ago.  The earlier proposal did not get enough signatures to qualify for the ballot.  A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.

Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment.  Death row inmates would be housed throughout the prison system.

The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty.  Eight states have rescinded capital punishment laws since 2000.

Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.

But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”

As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)

October 31, 2015 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

"Is Halloween Really More Dangerous for Kids?: A lack of evidence doesn’t stop cities from rounding up sexual offenders on the holiday."

Halloween-MGNThe title of this post is the headline of this recent Marshall Project piece that seems fitting to spotlight on October 31.  Here is an excerpt (with links from the original):

Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.

Some, including parts of Virginia, Georgia, Delaware and Texas, require sex offenders on probation or parole report to designated locations. O thers, such as Missouri, Florida and Nevada, direct some offenders to post signs on their doors that say, “No candy or treats at this residence.”  Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.

Before a 2014 ACLU complaint, the Plaquemines Parish Sheriffs Office in Louisiana required all registered sex offenders post this sign on their front lawn on Halloween.

For more than six years, the Gaston County Sheriff’s Department in North Carolina has ordered sex offenders who are still on parole to report to the courthouse on Halloween, said Capt. Mike Radford, who helps to oversee the program.  “We keep them in one big courtroom and call people in and out to do random drug testing and vehicle searches, and we have guest speakers,” he said.  “If they don’t show up, we pick them up and arrest them.”  Radford said he doesn’t know why the program began but believes it is because Halloween presents “easy accessibility to a minor.”

The laws began to proliferate nationwide in the 1990s, when the fear of a predator who lures young children into his home with candy arose amid other concerns, such as poisoned treats and razor blades in apples.  “Going back decades, there is this sense that there are these dangers to children on Halloween,” said Jill Levenson, a clinical social worker and associate professor at Barry University in Florida.

But studies have shown that more than 90 percent of children who are sexually abused know their abuser, who is often a family member or close acquaintance. A Bureau of Justice Statistics report showed that only 7 percent of those who sexually abused juveniles were strangers to their victims.

Levenson co-authored a study that examined the Halloween effect by looking at sex crimes against children between 1997 to 2005.  The researchers analyzed more than 67,000 crimes in which the perpetrators were strangers, acquaintances, and neighbors.

In a year-by-year comparison that zeroed in on Halloween, the researchers found no variation in number or types of crimes committed, even as more laws were added.  But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,”which run the addresses of local registered sex offenders, are common.

October 31, 2015 in Collateral consequences, Criminal Sentences Alternatives, National and State Crime Data, Sex Offender Sentencing | Permalink | Comments (9)

Friday, October 30, 2015

SCOTUS grants cert on quirky aspect of federal gun prohibition case

As reported in this SCOTUSblog post, headlined "Court grants review in firearm-possession case," the Supreme Court decided today to take up a federal criminal case involving gun rights. But, interestingly, as Amy Howe explains in the post, the Court did not accept for review the Second Amendment issue lurking in the case:

This afternoon the Court issued an initial group of orders from its October 30 Conference, adding one new case to its merits docket for the Term.  The Justices had considered  Voisine v. United States at two earlier Conferences before granting review today.

At issue are the convictions of two Maine men, Stephen Voisine and William Armstrong, for violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Both men allege that their convictions under Maine law for simple assault and misdemeanor domestic violence assault, respectively, do not automatically qualify as misdemeanor crimes of domestic violence for purposes of the federal law, 18 U.S.C. § 922(g)(9), because both provisions of Maine law can be violated by conduct that is merely reckless, rather than intentional.  The U.S. Court of Appeals for the First Circuit rejected that argument, and the federal government urged the Court to deny review, but the Justices today disregarded that recommendation.

Notably, however, the Court agreed to review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment.

October 30, 2015 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"

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

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

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

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

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

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Flip-flop-Hillary-Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Florida finally completes execution three decades after triple murderer sentenced to death (nonunanimously)

As reported in this local article, headlined "Orlando man on death row executed for 1985 murders," Florida carried out a notable death sentence last night.  Here are the basics, which highlight that the case involved issues that the Supreme Court has taken up in recent years:

Though it took 30 years for Jerry Correll to receive his death sentence, the process to kill him took 10 minutes. Correll, one of Orange County's most notorious killers, was pronounced dead at 7:36 p.m. Thursday at Florida State Prison after receiving a lethal injection that included the controversial sedative midazolam.

About two dozen witnesses watched as the 59-year-old Orlando man lay on a gurney covered with a white sheet from the neck down, his hands covered in bandages, his wrists strapped down and IVs in his arms. When the curtain surrounding him rose, Correll looked to his right and mouthed the words, "Thank you," to a man wearing a cross in the front row. Asked whether he wanted to say any last words, Correll responded to the leader of the execution team, "No, sir."

Correll had been on death row for three decades after stabbing to death his ex-wife, Susan; their 5-year-old daughter, Tuesday; and Susan's mother and sister in 1985. Police and prosecutors described the murders at the Conway-area home as among the most bloody and gory they had ever seen....

The victims' family members released a statement saying they were "at peace in knowing justice had finally been served." "Jerry Correll chose to take the lives of four beautiful, innocent people on June 30, 1985," the statement said. "People who are still loved and missed by their family and friends 30 years later. The consequences of those actions should be no less than death itself."...

The execution was the first in the nation since a U.S. Supreme Court ruling in June that allowed the use of midazolam, a sedative that is part of the three-drug protocol used in Florida executions.... Correll becomes the second inmate executed in Florida this year and the 91st since 1979, according to the Death Penalty Information Center.

A U.S. Supreme Court case regarding whether all death-penalty decisions should require a unanimous jury verdict in sentencing death ... is pending.... A jury of 10 women and two men, selected in Sarasota because of the publicity locally, convicted Correll of four counts of first-degree murder after a weeklong trial. Jurors voted 10-2 that he should die.

October 30, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Thursday, October 29, 2015

More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms

Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:

These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system.  About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders.  In short, we need to make sure that the punishment fits the crime.  Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.

And I know how badly we need reform.  As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system.  I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.

We need a new approach and we need a better approach.  We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....

We need to think differently.  We need to look beyond our own experiences and accept that there may be new and better, ways of doing things.  I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs.  Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities.  While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.

This new way of thinking is beginning to resonate in federal and state systems all across the country.  At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes.  The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead.  Twenty-nine red states and blue states across the country have passed innovative reforms.  Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.

But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty.  We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs.  We all know that we can’t simply jail our way into safer communities.  But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.

When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention.  The fact is, more than 95 percent of all prisoners will eventually be released from prison.  And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years.  We have to break that cycle.

We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past.  They need jobs and homes; friends and family.  Yet so many people in our society want nothing to do with anyone with a rap sheet.  There are too many people willing to pin a scarlet letter on those who have spent time in prison.  The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.

It is up to all of us to reject this way of thinking.  Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....

Achieving meaningful criminal justice reform will not be easy.  And we must all participate in this process, government and private citizens alike.  Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change.  It’s time that we collectively discard old assumptions and embrace new ideas.  In other words, it’s time we all collectively put two fingers to our temples.  Our nation and our fellow citizens deserve nothing less.

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (16)

Final reminder about "Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"

As noted in this post last week, some of my students at The Ohio State University Moritz College of Law have put together a terrific event for tomorrow afternoon (Friday, October 30) to discuss what next week's vote on an Ohio marijuana initiative might mean for both the politics and policy of marijuana reform.  This link leads to even details and registration for this (free) event, and there you can also find this summary description:

National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election.  In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.

Participants will include Professors Douglas Berman and Dan Tokaji from The Ohio State University Moritz College of Law, as well as John Hudak and Philip Wallach from the Brookings Institute.

Why this event is so timely and exciting can be readily understood just from these four most recent posts from my Marijuana Law, Policy & Reform blog:

October 29, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

"Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionaltiy Seriously and Implementing Fair Fixed Penalties"

The title of this post is the title of this notable new paper authored by Mirko Bagaric and Sandeep Gopalan now available via SSRN. Here is the abstract:

Unabated tough-on-crime policies in the United States for the past two decades in response to a crime problem have now produced another crisis: too many prisoners. Prison gates are currently literally being opened to release prisoners in a bid to ameliorate the unsustainable cost of detaining more than two million Americans.  More than 40,000 drug offenders may be released early from prison pursuant to retrospective sentence reductions which have been implemented for no greater reason than the prison walls are crumbling from overuse.  Sentencing is the sharp end of the criminal law.  It is the domain where the State acts in its most coercive manner against citizens.  The cardinal interests at stake are too important for it to continue to be dictated by reflexive legislative hunches.  Yet, it is the area of law where there is the biggest gap between what is implemented and what theory informs us is achievable.

This Article attempts to correct that failing and in the process makes concrete proposals to prevent the United States making another macro-political and social error by over-reacting to the present crisis.  Mandatory harsh penalties have caused the incarceration crisis.  The solution to the problem involves maintaining the overarching architecture of this approach but fundamentally alerting its content.  The core problem with the current approach to sentencing in United States is not its prescriptive nature.  It is that the sanctions are generally too severe; devoid of any attempt to match the gravity of the crime to the harshness of the penalty.  Proportionality is the missing component in United States sentencing.  Drug traffickers, for example, deserve punishment, but any system that treats them as severely as murderers is afflicted with a fundamental doctrinal deformity.

This Article proposes a model to remedy such flaws.  It gives meaning and content to proportionality.  As a result, it is suggested that most non-violent and non-sexual offenses should be dealt with less harshly.  This is especially because the cost and burden of imprisonment to the community needs to be factored into the sentencing calculus.  Moreover, prison should be principally reserved for offenders who are a threat to public safety; not those whom we simply dislike.  This will result in a rapid emptying of many prisons, but it will be principled -- not reflexive.  To illustrate the manner in which our recommendations should operate we develop a sentencing grid which, if implemented, would make United States sentencing fair, efficient and profoundly less expensive to the taxpayer.

October 29, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015

I have been remiss for failing to highlight in this space the notable analysis recently done by the US Sentencing Commission in conjunction with the Senate's work on the Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  That analysis appears in full form in this extended statement by USSC Chair Patti Saris to the Senate Judiciary Committee, and it appears in summary form in this USSC news release praising the Committee's passage of SRCA 2015 through to the full Senate.  Here are the key data appearing in short form in the press release: 

According to the Commission’s analysis, key provisions of S. 2123 would:

• Provide retroactive application of the Fair Sentencing Act (FSA), which could allow 5,826 offenders currently in prison to receive an approximate 20 percent reduction in sentence.

• Permit certain offenders who are currently subject to the 10-year mandatory minimum penalty to be subject to the 5-year mandatory minimum instead, which would reduce the sentence of 550 offenders annually by approximately 19.3 percent.

• Broaden the safety valve to provide greater relief to more low-level, non-violent offenders, which would reduce the sentence of 3,314 offenders annually by nearly 20 percent and save 1,593 federal prison beds within 5 years of enactment.

• Reduce mandatory minimum penalties for recidivist drug offenders with prior drug felony convictions from 20 years to 15 years, and reducing the mandatory life imprisonment penalty for certain offenders to 25 years while both narrowing and expanding the types of prior offenses that could trigger a mandatory minimum.

• Reduce the mandatory minimum sentencing enhancement for using a firearm in the commission of a violent crime or drug offense from 25 years to 15 years, and narrow the circumstances in which multiple sentencing enhancements apply, which would reduce the sentence of 62 offenders annually by 30.4 percent.

• Reduces the mandatory minimum penalty under the Armed Career Criminal Act from 15 to 10 years, which would reduce the sentence of 277 offenders each year by approximately 21.6 percent. The bill would apply this provision retroactively, which, if granted, could result in a sentence reduction for 2,317 offender currently in federal prison.

Recent prior related posts on SRCA 2015:

October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

NY Times debates "Will Crime Rise If More People Are Kept Out of Prison?"

The Room for Debate section of the New York Times has this new set of pieces exploring the potential crime impact of reduced use of incarceration.   Here is the section's set up (with links from the source):

Even many of the nation’s police chiefs have called for reducing the number of people, particularly minorities, sent to prison.  But the news that a man suspected of murdering a New York City police officer had been given break after break, and was free because he had been allowed to enter a diversion program rather than be jailed on drug charges, have led even supporters of such programs to raise questions about them.

With some already saying that crime may be rising, are we moving too fast to embrace limits on incarceration, such as diversion programs and drug courts? Could such measures actually increase the risk of crime?

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

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

States find (unsurprisingly) that civil commitment for sex offenders not a simple solution

This lengthy New York Times article, headlined "States Struggle With What to Do With Sex Offenders After Prison," documents some of the difficulties states have had with sex offender civil commitment programs. Here are excerpts:

Minnesota’s civil commitment program — which detains more people per capita than any other state — is facing an overhaul.  Earlier this year, a federal judge found it unconstitutional, calling it “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  The judge, Donovan W. Frank, of Federal District Court in St. Paul, is expected to order changes to the program as soon as this week.

Minnesota is not alone in revisiting its policies.  In Missouri, a federal judge last month found that state’s program violated people’s right to due process, potentially imposing “lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Of about 250 people held since Missouri began committing people in 1999, state officials say seven have been granted what the state considers release with court­ordered restrictions, though some of those men remain in a group­-home-­like setting behind razor wire at a state facility.

In Texas, which previously had a unique outpatient method for treating sex offenders civilly committed after their prison sentences, the Republican-dominated State Legislature this year revamped the program after a Houston Chronicle investigation found that none of the hundreds committed to the program had ever graduated from it.  The investigation also found that nearly half of the men detained for treatment while living in halfway houses and other facilities were actually sent back to prison for breaking the program’s rules.

“My sense was that we had to make changes or a federal court is going to strike down the whole program, and we need this program — some of these people would scare the hell out of you,” said State Senator John Whitmire, a Democrat who helped push through the overhaul, which included opening a former prison in remote Littlefield to house the detainees.  “The way it was, it just looked like incarceration with double jeopardy,” Mr. Whitmire said.  “This at least holds out a pathway to graduate.”

Civil commitment gained support in the 1990s amid reports of heinous sex crimes by repeat offenders.  Today, 20 states, along with the federal government, detain some sex criminals for treatment beyond their prison time.  But not all have been as sharply criticized as Minnesota’s program.  In Wisconsin, 118 offenders have been fully discharged from commitment since 1994, and about 135 people have been given supervised release, according to Judge Frank.  New York had sent home 30 people and moved 64 people out of secure facilities for the civilly committed and into strict supervision and treatment, Judge Frank wrote.

But the picture in Minnesota looks far different.  Since the current program was created in the mid­-1990s, civil commitments have soared.  The abduction, rape and murder in 2003 of Dru Sjodin, a North Dakota college student, by a sex offender who had been released six months earlier enraged residents and set off a wave of efforts by county attorneys to call on judges to hold such offenders after their prison terms.  Minnesota now has the highest population of civilly committed offenders per capita — nearly all men — in the nation, Judge Frank found, and the lowest rate of release.  And costs have soared — to about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota, the judge said.

Yet even in a state that is often seen as liberal­-leaning, changing the policy is politically fraught. Gov. Mark Dayton, a Democrat, faced intense criticism before his last election over whether to release from commitment — with strict conditions — a serial rapist who had admitted attacking at least 60 women.  And proposals aimed at paying for regular risk evaluations for committed people, as well as other changes, have stalled in the State Legislature.  “It’s really a stalemate now because the House Republicans have made it clear that anybody who supports any kind of step forward is going to be castigated in the 2016 elections,” Mr. Dayton said.

October 29, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7)

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

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

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

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

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

Noting the potential sentencing reform benefit from the latest budget deal

This notable new BuzzFeed article highlights an interesting link between the new budget deal and on-going sentencing reform efforts inside the Beltway.  The extended headline of the article tells the basic story: "Criminal Justice Advocates Get A Gift From The Budget Deal: More Time: Lawmakers think they will now have time early in 2016 to pursue the bipartisan criminal justice package that would reduce some federal mandatory minimum sentences."  Here are excerpts:

Efforts to change the nation’s criminal justice system got a major boost Tuesday. Congressional leaders began pushing a budget deal Tuesday to raise the debt limit and avert a shutdown until 2017.  Although the funding bill is completely separate from the criminal justice legislation lawmakers have been working on, if approved, it would give Congress more breathing room to focus on criminal justice changes before the 2016 election heats up.

With funding for the government set to expire in mid-December, advocates had been concerned that fiscal issues would dominate Congress through this year and potentially into next year, delaying the measure which has bipartisan support and took more than three years to negotiate.

But if the budget deal is signed into law, it could add to the momentum building in favor of the criminal justice legislation, which would reduce some federal mandatory minimum sentencing.  “This is the best possible scenario for us that the budget stuff is working itself out,” said Holly Harris, executive director of the bipartisan U.S. Justice Action Network. “This has cleared the way for our legislation.”

Republican leaders in the Senate even addressed the issue in their weekly press conference Tuesday afternoon, which in itself was a major victory, Harris said.  “Just the fact that leadership is talking about this bill is monumental,” she said.  “A year ago, many thought this wasn’t possible. In fact, two months ago no one thought this was possible.”...

During the Senate GOP leadership’s weekly press conference Tuesday, Senate Majority Whip John Cornyn urged the Senate to take up the issue as soon as possible. “The president’s in Chicago today talking about criminal justice reform, and as you know, there’s a bipartisan criminal justice reform bill, one composed of sentencing reforms and also prison reforms,” Cornyn told reporters.

“This is one area where I’ve told the majority leader that with that kind of broad bipartisan support, hopefully after we get through the rest of this year’s business, this is something we could take up,” he said. “The House is considering a similar bill. And with the president’s support of the idea of criminal justice reform, it’s seems like the time is right. “

Senate Majority Leader Mitch McConnell expressed support for bringing up the legislation to the floor for a vote, but did not give a timeline. “It’s certainly going to get floor time in this Congress, but I can’t give you an exact time at this point,” he told reporters.

Senate GOP aides believe it will be hard to take up the issue before next year even if the budget is taken care of in the coming days. But it does give senators who are supporting the measure the time and energy needed to lobby their colleagues and gear up for a vote when Congress returns in January. “I’m just encouraged by the momentum on criminal justice reform overall,” New Jersey Democratic Sen. Cory Booker told BuzzFeed News. “This bipartisan, bicameral energy is encouraging. It shows that we can come together and get things done.”

October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Leading Dems stake out notable positions on death penalty and marijuana reform

For sentencing and criminal justice fans, last night's GOP Prez debate was a big snooze.  But, as the two articles linked below highlight, the leading Prez candidates for the Democrats made headlines in this arena yesterday:

October 29, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Wednesday, October 28, 2015

"Why California's Second-Degree Felony-Murder Rule Is Now Void for Vagueness"

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

For years, justices on the California Supreme Court (CSC) have engaged in public soul-searching about whether to overrule the state’s second-degree felony-murder doctrine.  Now there is a powerful external reason for the CSC to revisit the question: The United States Supreme Court (USSC) has just struck down the so-called “residual clause” of the federal three-strikes statute as unconstitutionally vague.

Although the immediate intuition of experienced judges and lawyers will be to deny that this decision has any application to the felony-murder rule, this Article will show that, from the standpoint of vagueness, the two provisions are materially indistinguishable.

October 28, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (2)

Prez Obama talking up (yet again) sentencing reform

As reported in this New York Times piece, "President Obama made his case on Tuesday for an overhaul of the nation’s sentencing laws, telling a gathering of top law enforcement officials here that putting large numbers of nonviolent drug offenders in prison was neither fair nor an effective way of combating crime." Here is more:

While insisting that he did not harbor a “bleeding­heart attitude toward crime and justice,” Mr. Obama said the country should face up to the fact that policing priorities needed to shift away from locking up millions of nonviolent drug offenders — especially young black and Latino men.  “That’s not a sustainable situation,” Mr. Obama said.  “It is possible for us to come up with strategies that effectively reduce the damage of the drug trade without relying solely on incarceration.”...

The president received a warm response from the law enforcement officials in the crowd, many of whom have said that more robust gun control measures would help keep police officers safe.  On Monday, many police leaders at the conference called on Congress to pass universal background checks for firearm purposes, one of many proposals that failed to pass after the mass school shooting in Newtown, Conn. “It’s too easy for criminals to buy guns, and that makes your already dangerous job far more dangerous than it should be,” Mr. Obama said. “And it makes the communities so fearful that it’s harder for them to be a good partner for you.”

October 28, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (4)

Tuesday, October 27, 2015

"Automatic Justice? Technology, Crime and Social Control"

The title of this post is the title of this intriguing new paper authored by Amber Marks, Ben Bowling and Colman Keenan. Here is the abstract:

This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice.  It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system.  These blur the boundary between the innocent person, the suspect, the accused and the convicted.  They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment.  The entire process is being automated and temporally and procedurally compressed.  At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past.

This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model.  The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.

October 27, 2015 in Technocorrections, Web/Tech, Who Sentences? | Permalink | Comments (2)

Lots of good (old and new) media analysis of modern crime and punishment

I am on the road much of the next few weeks, and it often seems when I have less time on-line there is more really good stuff written by others I wish I had more time to highlight on the blog.  But with my time limited, I will here have to be content with a link-fest to a bunch of good pieces I recommend reading in full:

October 27, 2015 | Permalink | Comments (2)

Monday, October 26, 2015

"Culture as a Structural Problem in Indigent Defense"

The title of this post is the title of this notable new paper by Eve Brensike Primus available via SSRN. Here is the abstract:

Indigent defense lawyers today are routinely overwhelmed by excessive caseloads, underpaid, inadequately supported, poorly trained, and left essentially unsupervised.  They face an avalanche of hostility every time they walk into court as judges, prosecutors, and court personnel pressure them to process their clients through the criminal justice system. Many zealous defenders simply burn out and leave the job.  Of those who remain, many perform valiantly.  But the sheer reality of the difficult task that these lawyers are expected to do is often overwhelming.  Especially in contexts where indigent defense lawyers lack institutional support, even lawyers who wish to take their obligations seriously sometimes find themselves overwhelmed and gradually become less sensitive to the routine injustices of the system.  Others become cynical and depressed and unhappily continue in the job — aware of the problems, but feeling powerless to effectuate change.

The result is a serious cultural problem in indigent defense, especially in jurisdictions where such defense is handled by lawyers lacking the community and institutional reinforcement that strong public-defender offices can provide.  Consequently, many indigent defendants who go through the criminal justice system (as well as the friends and families of defendants who suffer through these ordeals with them) often feel confused, angry, and ignored.  They have no faith in the system or in the legitimacy of their convictions.  Rather, they experience the criminal justice system as an assembly line to prison for poor people of color.

In this essay, I will argue that attempts at reform should focus on changing this cultural problem in indigent defense delivery systems.  As was true in 1961 (when the symposium that this essay celebrates was published), there is now a feeling that change is coming. Countless commissions have issued reports documenting excessive defender caseloads, a lack of independence, and blatant violations of the constitutional right to counsel across jurisdictions and making recommendations for improvement.  Many states have developed bipartisan Indigent Defense Commissions to investigate best practices and implement more effective and efficient delivery systems going forward.  Legislators have convened working groups and have proposed legislation to address the crisis.  President Obama created the Office for Access to Justice, an initiative designed to analyze and think about how to improve indigent defense delivery systems.  And symposia abound detailing the problems with indigent defense delivery systems and recommending potential solutions.

A focus on improving the culture of indigent defense delivery systems can and should infuse current reform proposals and inform change going forward.  Perhaps this time, we can learn from some of our past mistakes and move toward accomplishing some of the laudable goals that many have been advocating for over fifty years.

October 26, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Interesting takes on California developments since passage of Prop 47

Download (1)I have long asserted that California has long been among the most interesting states to watch closely when it comes to crime and punishments.  The latest round of developments involve the state's passage of an initiative, Proposition 47, reducing the severity of many offenses and subsequent reactions thereto.  This new Los Angeles Times op-ed, authored by Robert Greene and headlined "California's Prop. 47 revolution: Were the voters duped?," provides a notable take on all this and a preview of more to commentary come.  Here are exerpts:

Police and prosecutors have lately attempted to link increases in crime to last year's Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft....

As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff's departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted....

Crime in Los Angeles and some other communities throughout the state has increased this year after many years of decline. But is that because of Proposition 47? Other American cities, where Proposition 47 has no effect, have seen similar increases.

If the ballot measure is connected to rising crime, that's probably because public officials have been too slow to recognize the options that the measure gives them. And it's likely that their decisions — a deputy's decision not to arrest, for example, or the sheriff's not to make room in the jail for a recidivist offender pending trial, or county supervisors' not to use any of the hundreds of millions of dollars currently available for non-jail alternatives — are based on suppositions about how the other links in the public safety chain will react....

The gist of the reaction against Proposition 47 is that we as a society simply have no choice but to make possession of drugs and petty theft into felonies punishable by more than a year in prison if we want to control more serious crime. Similar warnings were issued about the consequences of modifying the three-strikes law, yet recidivism among strikers released from prison after voters adopted Proposition 36 is astonishingly low. And similar arguments were made against redirecting some felons from state prison and state parole to county jail and county probation, yet crime rates after realignment continued to fall.

In the coming week, The Times' Opinion section — the Opinion L.A. blog, the editorial board and the Op-Ed page — will explore the repercussions of Proposition 47, and compare this episode in criminal justice history with similar recent changes that also produced periods of adjustment. The goal is not to defend the voters' decision but rather to seek some honest talk, some accountability and some effective action on the part of public officials who are responsible for providing public safety, justice and wise and effective spending.  

These follow-up opinion pieces provide, as their headlines suggest, pro and con views of the pros and cons of Prop 47:

California's Prop. 47 revolution: Voters were sold a bill of goods

California's Prop. 47 revolution: Give reform a chance to work

October 26, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, October 25, 2015

FCC finally puts limits on (over)charging inmates for all phone calls

A helpful reader reminded me that I ought not let go unmentioned the valuable work (finally!) completed by the Federal Communications Commission to place some limits on the oftn-extreme prices charged by phone companies to a truly captured consumer group.  This AP piece, headlined "FCC Votes to Further Cut Cost of Calls for Inmates," provides the basic details:

A federal commission's decision Thursday to further reduce the cost of jail and prison phone calls led some to hail it as a money saver for inmates' families, but immediately prompted phone companies to threaten legal action.  Mignon Clyburn, a Democratic commissioner with the Federal Communications Commission who voted in favor of the additional cutting, said the cost of the calls have placed "incredible burdens" on the family members of the more than 2 million people incarcerated in the U.S.

Among them is Dorothee Warner, who said she has spent more than $2,000 over the past year so she and her family can talk to her jailed son.  "It is a very predatory system that is unfair," the Overland Park, Kansas, woman said.  "People who are incarcerated, it is very difficult on their families. It is almost like the family is being punished as well."

Over the years, defense attorneys also have joined in the fight for lower rates. But phone companies have defended the costs, saying some of the money generated is used for things like activities for the incarcerated and that the calls require costly security features.  The FCC has countered that the cost of security features was built into the rate structure.

Securus Technologies Inc. CEO Richard Smith said in a written statement that the FCC's decision is a "colossal error" that threatens the financial stability of his company and other inmate phone providers.  He said Securus, one of the largest providers of inmate phone services, would join other companies in a request for court intervention.

Two years ago, the FCC voted to restrict rates on inmate calls made from one state to another. The new changes go further, capping rates on all local, in-state long distance, interstate and international calls.  The vast majority of inmate calls will cost no more than $1.65 for 15 minutes, although slightly higher rates will be allowed in some smaller institutions. And fees and other costs, which in some cases have boosted calls to $17 to $25 for 15 minutes, also would be limited.  The changes will take effect in prisons early next year and in jails by midyear.

Commissioners Ajit Pai and Michael O'Rielly, both Republicans, dissented, saying they believed they didn't have the authority to take such action.  Jonathan Thompson, executive director of the National Sheriffs' Association, said the group is "very disappointed."

"We believe also that inmates should have this capability to call, but unfortunately these new rates in all likelihood will mean that inmates will go without the ability to call and talk to their family members," he said.  "How many, we don't know."

The changes don't ban profit-sharing commissions that have benefited jail and prison operators and in some cases made calls costlier, although the amount of money coming in will likely be lower.  Even before Thursday's vote in Washington, however, some states had voluntarily moved to reduce or ban the commissions.

October 25, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (6)

Federal judge makes extended pitch for individuals to receive deferred-prosecutions agreements from DOJ

This new CNN story, headlined "Judge: Prosecutors should give drug offenders same break as companies," reports on the remarkable coda that appears at the end of a remarkable federal district court opinion handed down this past week. The start of the CNN story provides a link to the opinion and its highlights:

Some defendants charged with drug crimes should be offered a second chance the way corporations often are. U.S. District Judge Emmet G. Sullivan proposed this in an 84-page opinion in cases against two corporations this week.

Sullivan approved a settlement that will allow the companies, each facing allegations of bribery to win government contracts, to settle criminal charges. They won't have to plead guilty and won't face trial as long as they stay out of trouble in the future.

But he used the opinion to make a broader point about what he sees as a disparity in how the legal system treats corporations and nonviolent offenders.

"Drug conspiracy defendants are no less deserving of a second chance than bribery conspiracy defendants," Sullivan wrote. "And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations."

Sullivan, who is in Washington, D.C., asked why companies get a shot at "rehabilitation" when many individuals do not.

Here are just a couple of notable paragraphs from the remarkable closing sections of US v. Saena Tech Corp. penned by Judge Sullivan:

Although the Court approves the two deferred-prosecution agreements in these cases, the Court observes that the current use of deferred-prosecution agreements for corporations rather than individual defendants strays from Congress’s intent when it created an exclusion from the speedy trial calculation for the use of such agreements.  The Court is of the opinion that increasing the use of deferred-prosecution agreements and other similar tools for individuals charged with certain non-violent criminal offenses could be a viable means to achieve reforms in our criminal justice system....

The Court respectfully requests the Department of Justice to consider expanding the use of deferred-prosecution agreements and other similar tools to use in appropriate circumstances when an individual who might not be a banker or business owner nonetheless shows all of the hallmarks of significant rehabilitation potential.  The harm to society of refusing such individuals the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions is, in this Court’s view, greater than the harm the government seeks to avoid by providing corporations a path to avoid criminal convictions.  If the Department of Justice is sincere in its expressed desire to reduce over-incarceration and bolster rehabilitation, it will increase the use of deferred-prosecution agreements for individuals as well as increase the use of other available resources as discussed in this Opinion.

October 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Extraordinary tales of extraordinary government dsyfunctionality in execution business

In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who  has become a central figure in some states' efforts to get their machinery of death up and running again.  Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow.  Here are links to the two pieces with their extended headlines:

Here is how the second of these two articles concludes:

The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.

On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.

After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”

The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”

For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”

The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.

Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”

As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law.  His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.  

In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs.   But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.

Some prior related posts:

October 25, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff

October 25, 2015 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0)

Saturday, October 24, 2015

Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"

This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:

Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.

“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.

Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.

Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.

The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.

October 24, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (43)

Friday, October 23, 2015

"Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"

The title of this post is the title of an exciting event that I have been helping some of my students at The Ohio State University Moritz College of Law put together.  The event's timing is working out great, because the next Friday, October 30, 2015 is just few days days after the GOP candidates will be in Colorado discussing econmic issues (and marijuana reform?) and a few days before Ohio voters will go to the polls to decide on two marijuana-related ballot initiatives.  

Folks can (and should) pre-register for this (free) event at this link, which is also where you can find this summary description:

National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.

Participants will include Professor Douglas Berman, John Hudak from the Brookings Institute, Philip Wallach from the Brookings Institute and local researchers and advocates.

Why this event is so timely and exciting should become obvious from just a review of these recent posts from my Marijuana Law, Policy & Reform blog: 

October 23, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

"Utah latest red state grappling with death penalty"

The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State.  Here are the basics:

For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.

"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."

Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.

Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.

Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.

And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.

Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....

The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."

Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.

More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....

But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.

Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...

House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.

October 23, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement

In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here).  These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:

Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:

I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.

At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.

The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.

Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.

In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.

He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."

What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.

October 23, 2015 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, October 22, 2015

"Heroin as an execution drug?"

The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here).  Here are excerpts:

As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods.  “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.

“There are a lot of people out there talking about other solutions.  I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair.  That’s a debate we probably need to have.”

The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.

A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.

The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that.  Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”

A few prior related posts:

October 22, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)