Friday, December 9, 2016

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, December 8, 2016

"Death Row Dogs, Hard Time Prisoners, and Creative Rehabilitation Strategies: Prisoner-Dog Training Programs"

The title of this post is the title of this intriguing looking new paper authored by Paul Larkin now available via SSRN. Here is the abstract:

The use of Prisoner-Dog Programs (PDPs) is an innovative rehabilitative strategy that takes advantage of the bond that humans have had with dogs for thousands of years. Numerous state correctional facilities, along with the BOP, have adopted these programs to give prisoners, and sometimes dogs, a second chance.  The informal results witnessed to date appear positive for everyone concerned.

Inmates benefit because the animal-training instruction they receive, along with the experience they acquire training dogs in their care, provides them with a skill that they can use after their release.  More importantly, the relationship that a prisoner builds with his dog teaches him the need to achieve a goal; the importance of discipline and patience, along with disutility of violence, in being successful; the value and sense of self-worth in empathizing and caring for another creature; and, perhaps for the first time, the emotional bond with another living creature that allows him to feel and express love.  Dogs benefit because they escape their own death row and find their own “forever” homes.  Prisons benefit because the close interaction between prisoners and dogs leads to a reduction in the number of infractions and amount of violence. Members of the community benefit by receiving a dog that can become a service dog or a treasured family member. And society benefits from a reduction in the recidivism rate of participating inmates.  That is a “win-times-five.”

Prisoners, private parties, private organizations, correctional officials, and observers have all offered testimonials to the worthwhile effects of PDPs.  Dogs have done so too, in their own way.  To prove the utility of PDPs as a valuable rehabilitative strategy, Congress should instruct the GAO or the Justice Department to analyze existing PDPs to determine whether they are operating effectively and efficiently.

December 8, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11)

Wednesday, December 7, 2016

Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform

NA-CM623_SESSIO_16U_20161206163606The Wall Street Journal has this new article flagging the sentencing reform work of Senator Jeff Sessions, who is Prez-Elect Donald Trump's pick to serve as our next Attorney General. The article is headlined "Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing: Attorney-general pick, targeted for his record on race, advocated for parity in cocaine punishments." Here are excerpts:

Civil-rights groups are set to battle Sen. Jeff Sessions’s nomination as attorney general over what they see as his disturbing record on racial equality. But there is one chapter in the former prosecutor’s career where they share a sliver of common ground.

Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime. There has been a growing consensus that harsh penalties for crack, typically bought and sold on city streets, have taken an undue toll on African-American communities, while black leaders have long viewed the disparity as little short of racist.

To Mr. Sessions’s critics, the issue doesn’t come close to compensating for his career-long opposition to expanding civil-rights protections and reducing mandatory sentences, and more broadly for what they see as a general indifference to issues important to minorities.

But to the Alabama senator’s supporters, it is an overlooked part of a résumé they say is sometimes caricatured. “This was a personal agenda item for him,” said Matt Miner, Mr. Sessions’s former chief counsel. “This law was not calibrated to target serious drug dealers and was disproportionately affecting African-Americans, and it offended him.”

In a rare bipartisan move, Mr. Sessions and Democratic Sen. Dick Durbin of Illinois ultimately struck a deal in 2010 to reduce, though not eliminate, the sentencing disparity. Mr. Sessions hung a copy of the resulting legislation, signed by President Barack Obama, in a prominent spot in his office next to his desk, Mr. Miner said....

In 1995, the U.S. Sentencing Commission tried to put the sentencing guidelines on par, but Congress rejected the proposal. Weeks later, riots broke out in the federal prison in Talladega, Ala., and spread to other federal facilities, an uprising the Bureau of Prisons attributed partly to Congress’s rejection of the cocaine measure. Mr. Sessions, then Alabama’s attorney general, was elected to Congress the following year. His first sentencing bill, in 2001, lowered the sentencing disparity to 20-to-1.

Mr. Sessions declined to comment for this article. But he told The Wall Street Journal at the time that the crack penalties were unfair and in many cases made cities less safe, not more so. On the Senate floor, he cited studies showing that African-Americans made up 84% of defendants sentenced for trafficking crack but only 31% of those sentenced for powder. “The five-gram trigger point for crack that was intended to protect African-Americans has resulted in heavy penalties for African-Americans, penalties that lack a rational basis,” Mr. Sessions said in 2002. He reintroduced the proposal in 2006 and 2007.

The Fair Sentencing Act, ultimately signed into law in 2010, raised the trigger for a five-year sentence to 28 grams of crack and the 10-year trigger to 280 grams of crack. The triggers for powder cocaine remained at 500 and 5,000 grams.

Advocates for criminal-justice changes aren’t expecting much support from Mr. Sessions on some of their other priorities. “It’s not entirely clear why he supported the Fair Sentencing Act,” said Marc Mauer, executive director of the Sentencing Project, which worked with Mr. Sessions on the issue for years. Mr. Sessions has opposed efforts to reduce sentences for nonviolent drug offenders and to investigate law-enforcement agencies accused of violating civil rights.

Others are even more downbeat.

“He has taken positions so diametrically opposed to civil and human rights that there is little hope he would bring the sense of hope and openness he brought to the Fair Sentencing Act to the job of attorney general,” said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. “I consider it a one-off where he could show he was more enlightened and less doctrinaire than some of his colleagues.”

Mr. Henderson’s group is one of 145 organizations that signed a letter opposing Mr. Session’s nomination. The letter cites racially insensitive remarks allegedly made by Mr. Sessions; his unsuccessful prosecution of three black voting-rights activists on fraud charges; his support for voter ID laws that many activists say are designed to tamp down minority voting; and his opposition to a 2009 law expanding federal prosecution of hate crimes....

Kevin Ring, vice president of Families Against Mandatory Minimums and himself a former offender, said he hopes Mr. Sessions will at least leave discretion to federal prosecutors rather than ordering them to seek maximum penalties. “I’m looking for a silver lining,” he said.

A few prior related posts on Senator Sessions and sentencing reform:

December 7, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office.  This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."

I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.  This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:

The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.

In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.

While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.

There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....

The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can.  The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack.  The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.

Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency.  Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge.  With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.

December 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences

As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:

Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible."  A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.

The first ruling involved a murderer who was 16 at the time.  The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled.  In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...

The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime.  Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."

A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.

I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):

On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.

In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....

Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.

The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.

December 7, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Georgia completes ninth and last execution of 2016

As reported here by BuzzFeed News, "William Sallie was executed Tuesday night in Georgia for the 1990 murder of his father-in-law, Jack Moore, after the US Supreme Court denied two requests to halt it." Here is more:

Sallie became the ninth person to be executed in Georgia this year, making it the state with the most executions so far in 2016. It was also the highest number of executions in the state since the death penalty was reinstated in 1976.

In March 1990, Sallie broke into the home of his in-laws, Jack and Linda Moore, where his ex-wife Robin and their two-year-old son, Ryan, were living after Sallie lost a bitter custody battle. Robin’s 17-year-old sister, April, and 9-year-old brother Justin also lived in the rural home in Bacon County, according to court documents. Sallie shot the Moores as they slept in their bed, killing Jack and wounding Linda. He then handcuffed Linda and Justin to the bed rail and abducted Robin and April to his mobile home where he raped them, according to evidence presented at the trial. He released them a day later and was arrested shortly after.

The Georgia Board of Pardons and Paroles denied clemency for Sallie on Monday. Sallie’s clemency petition and an appeal filed in the US Supreme Court argue that his execution will be unconstitutional as he has been denied federal court review of his claims of juror bias because of a procedural technicality. The US Supreme Court denied his request, with no noted dissents by any of the justices.

His lawyers argued that Sallie’s death sentence was imposed at the urging of a juror who was “patently biased” against him and was dishonest about her life experiences that would have affected her judgement during jury selection.

December 7, 2016 in Death Penalty Reforms | Permalink | Comments (1)

Tuesday, December 6, 2016

"Bill Would Create Law Clerkships on Capitol Hill"

The title of this post is the headline of this new National Law Journal article that discusses a terrific program that a terrific colleague has been advocating for.  Here is how the article begins:

Is the fifth time the charm for a proposed congressional clerkship program for new lawyers? It might be.

A bipartisan coalition of four U.S. senators on Monday introduced a bill that would create a dozen yearlong clerkships on Capitol Hill for recent law graduates—a long-discussed program modeled after judicial clerkships that aims to give lawmakers deeper legal resources while providing future leaders of the legal profession with legislative experience.

Previous iterations of the Daniel Web­ster Congressional Clerkship Program passed in the House of Representatives but stalled in the Senate amid gridlock and Republican concerns over unspecified costs. Now, advocates of the program say a fresh slate of Senate co-sponsors that spans the aisle, as well as changes that clarify the program won't require additional funds, mean conditions are finally ripe for the bill's passage.

"We have members who are excited to push the bill and we have a window here before the end of the lame duck," said Dakota Rudesill, a professor at Ohio State University Michael E. Moritz College of Law who has been working on the initiative for a decade and serves as the national coordinator of the Congressional Clerkship Coalition.

Sen. Mike Lee, R-Utah, is co-sponsoring the bill along with Patrick Leahy, D-Vermont, Ted Cruz, R-Texas, and John Hoeven, R-North Dakota. While Congress is tasked with creating laws, it's the only branch of the government without a designated clerkship or fellowship for young lawyers.

"Really, when you look at the greater landscape and you compare it to the well-established judicial clerkship experience and the executive branch attorney honors programs, there's really a void when it comes to the legislative arena," said Joe Gambino, a 2013 graduate of Georgetown University Law Center who worked on the clerkship initiative as a student in Rudesill's clinic, where the professor taught before moving to Ohio State. "This bill would really fill that void and allow some of the top talent from our nation's law schools to spend a formative year in the legislative branch. That's really not an option to them right now."

The problem isn't that there are too few lawyers on Capitol Hill, Rudesill said. Rather, it's that those lawyers often aren't focused on the nuts of bolts of making law: researching and drafting bills, statutory analysis, and utilizing congressional procedure rules. Instead, lawyers are typically tasked with policy making, constituent matters and messaging, Rudesill said.

Having clerks with a deep understanding of how to create laws will benefit Congress and will help elevate Congress' status within the legal profession, he added. "The legislative experience gap is significant because we do not have people in the top ranks of the legal profession who have done legislative work from the inside," Rudesill said. "We believe that correlates to less appreciation for the role of Congress and legislation in the U.S. legal system." The proposed clerkship is intended for promising young attorneys who will take their Capitol Hill experience into other leadership roles within the legal profession, not necessarily those aspiring to government careers, he said.

December 6, 2016 in Who Sentences? | Permalink | Comments (6)

SCOTUS unanimously upholds broad interpretation of insider trading in Salman

The Supreme Court handed down this morning its first significant criminal justice ruling of the Term via a unanimous decision in Salman v. US, No. 15-628 (S. Ct. Dec. 6, 2016) (available here).  Here is how the opinion authored by Justice Alito for a unanimous court gets started:

Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage.  48 Stat. 891, as amended, 15 U.S.C. § 78j(b) (prohibiting the use, “in connection with the purchase or sale of any security,” of “any manipulative or deceptive device or contrivance in contravention of such rules as the [Securities and Exchange Commission] may prescribe”); 17 CFR § 240.10b–5 (2016) (forbidding the use, “in connection with the sale or purchase of any security,” of “any device, scheme or artifice to defraud,” or any “act, practice, or course of business which operates . . . as a fraud or deceit”); see United States v. O’Hagan, 521 U.S. 642, 650–652 (1997).  Individuals under this duty may face criminal and civil liability for trading on inside information (unless they make appropriate disclosures ahead of time).

These persons also may not tip inside information to others for trading. The tippee acquires the tipper’s duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper’s duty, and the tippee may commit securities fraud by trading in disregard of that knowledge.  In Dirks v. SEC, 463 U.S. 646 (1983), this Court explained that a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit.  And, we went on to say, a jury can infer a personal benefit — and thus a breach of the tipper’s duty — where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id., at 664.

Petitioner Bassam Salman challenges his convictions for conspiracy and insider trading.  Salman received lucrative trading tips from an extended family member, who had received the information from Salman’s brother-in-law.  Salman then traded on the information.  He argues that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them.  The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a “‘gift of confidential information to a trading relative.’” 792 F.3d 1087, 1092 (CA9 2015) (quoting Dirks, supra, at 664).  Because the Court of Appeals properly applied Dirks, we affirm the judgment below.

December 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Intriguing discussion of how religion might have helped save the death penalty in Nebraska

584656d34e0b2.imageThis new local article, headlined "How religion impacted Nebraska’s death penalty vote," discusses the intersection of religious beliefs and support for capital punishment among Cornhuskers. Here are the details:

While the presidential election surprised most people, the results of one Nebraska vote shouldn’t have been a surprise. Nebraska voters resoundingly repealed a bill eliminating the state’s death penalty, with 61.2 percent voting to reinstate the punishment and 38.8 percent hoping to keep it off the books. As Nebraska is a solid Republican state, its death penalty vote matches national statistics. 72 percent of Republicans nationwide support the death penalty, according to a September Pew Research poll.

But for some Nebraskans, the death penalty vote wasn’t a political decision, but a decision based on religious beliefs. Christians are more likely to support capital punishment than other groups, according to the same Pew Research Poll. White evangelical Protestants are most in favor, with 69 percent supporting the death penalty, followed by white mainline Protestants at 60 percent. By a narrow margin, more Catholics oppose the death penalty than support it, at 46 percent to 43 percent.

But these views are contrary to official statements from some Christian leaders. Major religious groups, including the United States Conference of Catholic Bishops, the Evangelical Lutheran Church in America and the Episcopal Church, have published statements opposing the death penalty on religious grounds. This means people often disagree with their denomination’s official statements on the issue.

Allison Johnson, a minister at The Lutheran Center at the University of Nebraska-Lincoln, echoed the anti-death penalty sentiments of the ELCA church she serves on campus. If she’d been registered to vote in Nebraska instead of Wisconsin, Johnson would have voted to retain the bill, she said. “Jesus didn’t overcome systems of violence and injustice by more killing,” she said. “Jesus overcame them by absorbing them and dying himself.”

But the Rev. Jerry Thompson of St. Mark’s Episcopal Church at UNL said the issue is more complicated than that. Thompson has voiced opposition to the death penalty and voted to retain the bill. “I think of those passages where Jesus says, ‘Forgive your enemies, forgive those who have abused you, pray for them,’” Thompson said. “That doesn’t suggest to me putting them to death is part of the Christian way of life.”

But voting to reinstate capital punishment doesn’t make a Christian a hypocrite, he said. “You could hold religious beliefs and still vote in favor of keeping the death penalty,” Thompson said. “I don’t think that one thing necessarily leads to the other.” The complexity of the issue is one reason for the divide among Christians, Thompson said.

Plus, conversation about the death penalty doesn’t crop up much in day-to-day life, said the Rev. Steve Mills of St. Thomas Aquinas Catholic Church. While Mills is against capital punishment, it’s a low priority on his list of things to preach about, he said. “I know the church will speak about [the death penalty], but I don’t think the church has a huge push with it,” Mills said. “I think that’s kind of where it’s not clearly articulated frequently. It just comes up around election time.”

But not all pastors at UNL are against the death penalty on religious grounds. The Lutheran Church-Missouri Synod and the Southern Baptist Convention are two groups that favor it. Pastor Bill Steinbauer of the University Lutheran Chapel, a Missouri Synod church at UNL, said he rarely discussed capital punishment this fall, although politics was a hot topic. “I think when Christians tend to argue over things, this isn’t one of them,” Steinbauer said. “It’s one more of those things where we can agree to disagree. I don’t see that as being a big, divisive thing.”

He’s against the death penalty for reasons not found in the Bible. “I’m not morally against it; my reasons for being against it are more practical,” he said. “Based on the reading of Scripture, the Bible allows for the government to have capital punishment. But I would also say that it’s somewhat of a case-by-case thing too. If the government is undeniably corrupt and the government is enacting injustice upon people even through the use of the death penalty, no Lutheran pastor would stand up and say, ‘Hey, that’s perfectly OK.’”...

UNL student David Magnuson supports the government’s ability to pass punishment. “You know, it is wrong for someone to kill someone, even in retribution; that’s always wrong, but that doesn’t apply to governments,” Magnuson said. “The government is not a person; it is a higher entity, and its role is to be just through laws.” The senior criminal justice major is active both religiously and politically, serving in UNL’s Reformed University Fellowship youth group and interning for Nebraska Attorney General Doug Peterson....

Magnuson grew up in a non-denominational church in Texas, a state where he says “every Christian supports the death penalty.” “Here, it is different, and I’ve met people who don’t support it,” Magnuson said. “It’s a very complex issue, and it’s not a good topic. [But] I think the worst crime you can do is kill someone.” Magnuson said he rejects the argument that it’s cheaper to have a criminal spend life in prison. “Just paying for an inmate in prison is such a strain on society,” he said. “You’re paying to keep them alive. I think we should just kill them, and kill them fast. That’s what we do in Texas, and I think it’s great.”

The best argument he’s heard against the death penalty is that it gives inmates time to find God. But he said the death penalty can’t “stop God’s plan.” “It’s not the government’s role to play Jesus; It’s not,” Magnuson said. “That’s people’s role to play Jesus, and obviously, if we were in a perfect world, we wouldn’t deal with this problem.”

December 6, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (3)

"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."

The title of this post is the full headline of this new Atlantic piece.  Here is how it gets started (with links from the original):

Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.

“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”

The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement.  In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater.  Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population.  Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.

The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.

By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.  

For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.

December 6, 2016 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, December 5, 2016

Is Georgia really "rushing" to execute a defendant convicted of murder in 1990?

The question in the title of this post is prompted by this new New York Times commentary authored by Norman Fletcher, who "served on the Supreme Court of Georgia for over 15 years and was its chief justice from 2001 to 2005."  The NY Times gave this commentary the headline "Georgia’s Dangerous Rush to Execution," but the first sentence of the commentary states: "Tomorrow, the State of Georgia intends to execute William Sallie, who was convicted of killing a man in 1990." Though there could be many problems with Georgia's capital system, conducting an execution 26 years after a capital conviction does not seem to me like a "rush job." That lingo aside, here is what former Justice Fletcher goes on to explain in his commentary:

I served as a justice on the Supreme Court of Georgia for over 15 years. During that time I participated in dozens of death-penalty cases and affirmed many of them. That experience, though, exposed me to some of the significant flaws in the system — not just the injustice of the death penalty itself, but specific problems with the way capital cases are handled. Mr. Sallie’s case is a prime example.

Perhaps the biggest problem with Georgia’s system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers. Mr. Sallie, for example, missed a filing deadline for a federal review of his case by eight days, in part because he didn’t have a lawyer at the time to help him. And this isn’t just a delay tactic; he has several strong claims about constitutional failings during his trial that, if proved, could require the reversal of his conviction. As things stand, he will be executed without review.

Fundamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier.

I saw this firsthand as the presiding justice on the State Supreme Court in 1999, in an appeal of a post-conviction hearing for a man named Exzavious Gibson, who was 17 at the time of his crime. It was a critical proceeding, where a lawyer should have raised important details about whether he received adequate representation during his trial — except that, ironically, no volunteer attorney was available. Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself.

That sham of a proceeding is one of the most deplorable vignettes in Georgia’s legal history. But a majority of my fellow justices were less moved, and the court decided, 4-3, that people with death-penalty convictions have no right to counsel at that critical post-conviction stage — a ruling still in force today.

As a result, a door that would have been open to Mr. Sallie in almost any other state was closed to him in Georgia. If it were open, he would be able to present the facts about his trial, which appear to show serious problems with juror bias.

Mr. Sallie’s lawyers amassed volumes of public records and witness statements showing that one of the jurors, despite having a known bias, apparently misled the trial judge and the parties in order to join the jury. (She omitted vital, likely disqualifying information, including striking similarities between her traumatic history of divorce and interstate child custody fights and the domestic strife at the center of Mr. Sallie’s case.) In 2012, after his conviction, she bragged to an investigator that she had persuaded the jury, which was evenly divided between life and death, to vote unanimously for death.

The problem is not just Georgia. The United States Supreme Court has not ruled that the Constitution guarantees a right to an attorney during the critical post-conviction review stage in state courts. Georgia continues to deny counsel — and denies a man like William Sallie the opportunity to defend his life.

December 5, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"No Bars: Unlocking the Economic Power of the Formerly Incarcerated"

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility. But formerly incarcerated individuals face substantial obstacles to employment when they leave prison, from discrimination in hiring to occupational licensing requirements that exclude those with criminal records from specific professions.

This paper summarizes recent research on the employment of formerly incarcerated individuals, focusing in particular on the disproportionate effect of occupational licensing requirements.  The paper concludes with suggestions for policy changes that would reduce the friction this population experiences in the labor market.  These policies would help these individuals become more economically independent and have a positive impact on the economy as a whole.

December 5, 2016 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4)

Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive

Lead_960The title of this post is my (foolish?) reaction to this notable new Politico magazine article headlined "Jeff Sessions’ Coming War on Legal Marijuana: There’s little to stop the attorney general nominee from ignoring the will of millions of pro-pot voters." Here are excerpts from the start of the article which I follow with a (too brief) explanation for my blunt "bring it" bravado:

By nominating Senator Jefferson Beauregard Sessions III for attorney general, President-elect Donald J. Trump is about to put into the nation’s top law enforcement job a man with a long and antagonistic attitude toward marijuana. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot.” In April, he said, “Good people don't smoke marijuana,” and that it was a "very real danger" that is “not the kind of thing that ought to be legalized.” Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.”  In a floor speech earlier this year, Senator Sessions said: "You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”

Sessions has not shared his plans on marijuana enforcement, but if he chooses, he will be able to act decisively and quickly — more so perhaps than with any other of his top agenda items such as re-doubling efforts to combat illegal immigration and relaxing oversight of local police forces and federal civil rights laws. With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters, including those in his own state who approved the use of CBD. Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.

And so far, Congress has shown no interest in trying to stop the Sessions nomination, at least on this issue. Even members who are in favor of protecting states from federal interference on the marijuana issue have said they support Sessions’ confirmation as attorney general: “I strongly support Jeff Sessions as Attorney General,” said Representative Tom McClintock, Republican from California. “He is a strict constitutionalist who believes in the rule of law. I would expect that he will respect the prerogative of individual states to determine their own laws involving strictly intra-state commerce.”

There are dozens of reasons I think it would be quite foolish as a matter of constitutional law and sound federal policing priorities for future Attorney General Jeff Sessions to start his tenure by using broad federal police powers to criminally prosecute tens of thousands of players in a growing recreational marijuana industry.  This industry is already well-established and producing thousands of jobs and tens of millions in tax revenues in Colorado, Oregon and Washington; it is now gearing up for growth in Alaska, California, Massachusetts and Nevada and maybe Maine.

In the most simple of terms, it would be foolish for the Trump/Sessions Administration to try to "Make America Great Again" via tough federal pot prohibition enforcement because it would show to all who care to pay attention that the GOP's purported affinity for personal freedoms, free markets, limited government and states' rights is a huge bunch of hooey.  But I genuinely believe that most younger GOP Senators — e.g., folks like Ted Cruz, my wish pick for AG, Mike Lee, Rand Paul, Ben Sasse, Tim Scott— have always voiced a genuine commitment to personal freedoms, free markets, limited government and states' rights.  Consequently, I do not think these important GOP voices are going to be quick to bless any efforts by future AG Jefferson Beauregard Sessions III to bring back an era of national federal Prohibition enforcement by executive fiat.

Moreover, and completely missing from the facile analysis in this superficial Politico article, even if future AG Jeff Sessions were eager to bring back an era of national federal Prohibition enforcement by executive fiat for the emerging recreational marijuana industry, there will still be the bigger and stronger and much more consequential medical marijuana industry chugging along — especially in so many swing/red states that were critical to the election of Donald J. Trump circa 2016.  I am thinking here specifically of now-red states like Arizona and Florida and Michigan and Ohio and Pennsylvania.  Those now-red states alone add up to nearly 100 electoral votes that a whole bunch of Dems would love to win back in 2018 and 2020; and they are all states that, I think, could easily go back into the Dem column if/when establishment Dems finally figure out that medical marijuana reform in a winning issue worth promoting forcefully.  (I have blogged here an explanation for my claim in a post at my other blog that Voter math suggests a possible Hillary landslide IF she had championed marijuana reform.)

Importantly, in this post I have only outlined some obvious political/policy reasons for why I think it would be foolish (and ultimately unlikely) for future AG Jefferson Beauregard Sessions III to bring back an era of national federal pot Prohibition enforcement by executive fiat.  In a future post, assuming readers are interested, I can explain all the reasons I think the other two branches of the federal government — Congress and the federal judiciary — can and would and should find an array of means to "stop the attorney general nominee from ignoring the will of millions of pro-pot voters."  Given that Congress and federal judges over the last eight years have done a whole lot to preclude the Obama Administration from doing too much by executive fiat,  everyone concerned about criminal justice and marijuana policy in the Trumpian future much keep in mind that the Framers gave us a wonderful federal system of check-and-balances that has been pretty effective at keeping the big bad federal government from doing too many stupid things that are obviously against the considered will of the people.

Just sayin'

Cross-posted at Marijuana Law, Policy, and Reform

December 5, 2016 in Criminal justice in the Trump Administration, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13)

Anyone interested in SCOTUS speculating after Ohio repeat execution case again left in limbo?

The question in the title of this post emerges from the latest SCOTUS order list here, which does not mention in any way Broom v. Ohio.  This accounting of Broom from SCOTUSblog's most recent Relist Watch will remind readers why I am paying (too?) much attention to this case:

16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4, November 10 and November 22 conferences)

For the first few relists in early November, I was speculating that the Justices were waiting for one or more of them (e.g., Justices Breyer and Ginsberg and ____) to complete a dissent from the denial of certiorari.  But now that this unique (and not-so-complicated) case has been in front of SCOTUS for well over a month, I am starting to think the Justices are inclined to hold on to this case until a replacement for Justice Scalia is named; once that new possible Justice is named, the current Justices can and will all have a better sense of whether and how the new Justice might break a possible 4-4 tie in this case.

Before urging readers to check out all the prior posts linked below (and others), I cannot help but flag a phrase in this post from Sept 2009 when Ohio first tried to move forward with a second execution attempt: "it is hard to predict if and when and how the US Supreme Court will be brought into this fray."  It is perhaps worth recalling that this phrase was written when Justices Scalia, Souter and Stevens were all on SCOTUS.  Now, a (lucky?) seven years later, we have Justices Kagan and Sotomayor and an open seat.

Related posts (most from 2009) on botched Broom execution attempt and its aftermath:

December 5, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Shining spotlight on ugly dark racial realities of New York State's prison and parole systems

The New York Times has an important new series of articles examining biases in New York State's prison and parole systems. Here are links to and key passages from the first two articles:

"The Scourge of Racial Bias in New York State’s Prisons"

A review by The New York Times of tens of thousands of disciplinary cases against inmates in 2015, hundreds of pages of internal reports and three years of parole decisions found that racial disparities were embedded in the prison experience in New York.

In most prisons, blacks and Latinos were disciplined at higher rates than whites — in some cases twice as often, the analysis found.  They were also sent to solitary confinement more frequently and for longer durations.  At Clinton, a prison near the Canadian border where only one of the 998 guards is African-American, black inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.

A greater share of black inmates are in prison for violent offenses, and minority inmates are disproportionately younger, factors that could explain why an inmate would be more likely to break prison rules, state officials said. But even after accounting for these elements, the disparities in discipline persisted, The Times found.

The disparities were often greatest for infractions that gave discretion to officers, like disobeying a direct order.  In these cases, the officer has a high degree of latitude to determine whether a rule is broken and does not need to produce physical evidence.  The disparities were often smaller, according to the Times analysis, for violations that required physical evidence, like possession of contraband.

"For Blacks Facing Parole in New York State, Signs of a Broken System"

An analysis by The New York Times of thousands of parole decisions from the past several years found that fewer than one in six black or Hispanic men was released at his first hearing, compared with one in four white men.

It is a disparity that is particularly striking not for the most violent criminals, like rapists and murderers, but for small-time offenders who commit property crimes like stealing a television from a house or shoplifting from Duane Reade — precisely the people many states are now working to keep out of prison in the first place.

Since 2006, white inmates serving two to four years for a single count of third-degree burglary have been released after an average of 803 days, while black inmates served an average of 883 days for the same crime.

December 5, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 4, 2016

After securing right of self-representation, Dylann Roof says he now wants lawyer help for guilt phase of capital trial

Mass murderer Dylann Roof is making headlines again, as reported in this new BuzzFeed News piece, "Dylann Roof Has Changed His Mind And Wants His Attorneys Back: The alleged Charleston church shooter had been representing himself in court, but on Sunday he asked for his lawyers back for part of his trial." Here are the basics:

Dylann Roof, the white supremacist who allegedly killed nine people at a historic black church in Charleston last year, on Sunday asked a judge to allow his defense attorneys to once again represent him at trial — but only through part of the case.

Roof successfully petitioned last week to act as his own lawyer during the death penalty trial in accordance with his rights under the Sixth Amendment. He was then involved in the jury selection process, but was assisted by stand-by counsel. However, Roof changed his mind on Sunday, filing a motion and handwritten letter asking US District Judge Richard Gergel to let his lawyers return, but only for the phase of the trial in which jurors will decide whether Roof is guilty or innocent.

“I would like to ask if my lawyers can represent me for the guilt phase of the trial only,” Roof wrote. “Can you let me have them back for the guilt phase, and then let me represent myself for the sentencing phase of the trial?”

“If you would allow that, then that is what I would like to do,” Roof wrote, signing his name. Judge Gergel is yet to make a decision on the motion, but he had been deeply critical of Roof’s original decision to represent himself, telling the defendant it was “strategically unwise” and “foolhardy.”

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Congress finally gets one bipartisan piece of federal criminal justice reform to Prez Obama's desk ... thanks to Trump's victory?

Thanks to this posting by Ted Gest at The Crime Report, headlined "Finally, Some Congressional Action on Criminal Justice," I learned that Congress last week was able to use its lame-duck days to finally enact a need reauthorization on the 2004 Justice for All Act.  Here are the basics:

It took a lame-duck session to do it, but Congress has approved one of its most significant pieces of criminal justice legislation during its two-year term that ends this month: the Justice for All Act. The measure, which had considerable bipartisan support, should help the testing of evidence in rape cases, expand post-conviction DNA testing, strengthen crime victims’ rights, and help states improve their systems to represent poor people in criminal cases.

The Senate approved the bill [late Thursday] after the House okayed it earlier this week, sending the measure to President Obama for his signature. It expands on a law enacted in 2004 during George W. Bush’s presidency.

Sen. Patrick Leahy (D-VT), the top Democrat on the Judiciary Committee and a former prosecutor, was a leading sponsor of the bill. He said yesterday that during his many years as a leader of the Judiciary panel, “It has become clear to me that our system is deeply flawed – there is not always justice for all.” When the bill passed the House on Tuesday, Judiciary Committee Chairman Bob Goodlatte (R-VA) said it provides “law enforcement resources to identify the guilty and free the innocent.” Other major sponsors were Sen. John Cornyn (R-TX) and Reps. Ted Poe (R-TX) and Jim Costa (D-CA).

The bill ensures that at least least 75 percent of federal funds for handling “rape kits” of evidence submitted by victims will go toward direct testing and not other purposes and offers incentives to states to hire full-time Sexual Assault Nurse Examiners, especially in rural and under-served areas. Crime victims would get more access to restitution funds under the bill. It also settles disputes involving the federal Prison Rape Elimination Act (PREA), which threatens to cut off federal anticrime aid to states that don’t take sufficient action to protect inmates against sexual assault. The new law protects aid to states under the separate Violence Against Women Act from being cut in states that don’t comply with PREA. It allows states six years to abide by PREA before their federal funds are cut off, and requires greater transparency from states on the status of their PREA implementation.

The bill renews the Kirk Bloodsworth Post-Conviction DNA Testing program, which provides funding to states to help defray costs associated with post-conviction DNA testing.

I am quite pleased to seem some (minor?) federal criminal justice reform finally make it through this Congress and get to the desk of Prez Obama. (And this section-by-section accounting of the legislation leads me to think that it perhaps should not be considered "minor" even though it seems unlikely to be getting much press and advocacy attention.)

And, as the title of this post suggests, I am quite unable to avoid thinking about whether the passage of this criminal justice legislation was made possible by the new Trumpian world order in Congress. For whatever gridlock reasons, the seemingly non-controversial Justice for All Act could not get to the desk of Prez Obama before the November election. But, for whatever new-world-order reasons, this legislation slid right on through the lame duck Congress no that nobody needed any longer to be focused only on election-cycle rhetoric and posturing about crime and justice reform.

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Second Circuit hints that sentence reduction might well be justified whenever guideline range is increased "significantly by a loss enhancement"

I am grateful to Harry Sandick for alerting me to this seemingly little (and easily overlooked) opinion handed down by a unanimous Second Circuit panel late last week.  Stephanie Teplin and Harry Sandick discuss the case in this thoughtful blog posting, and here are key passages from their coverage:

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level — a sentencing scheme for fraud that is “unknown to other sentencing systems” — required the district court to reconsider whether a non-Guidelines sentence was warranted....

Judge Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “use[s] loss amount as the predominant determination of the adjusted offense level for monetary offenses.”  However, he observed that “the Commission could have approached monetary offenses quite differently.  For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss.”

The “unusualness” of the Guidelines system, the Court held, can be considered by a sentencing judge under Kimbrough v. United States.  “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.”  The Court did not hold that the sentences were in error, but remanded for the district court’s reconsideration of the sentences....

Judge Newman has long been a skeptic of the Guidelines approach to sentencing.  In this short opinion, he cites the pre-Booker decision in United States v. Lauersen, 348 F.2d 329 (2d Cir. 2003), an opinion he authored at a time when the Guidelines were mandatory, except for downward departures.  Lauersen held that where the cumulative impact of overlapping Guidelines enhancements (in that case, for loss amount and for defrauding a financial institution of more than $1 million) resulted in an overly long sentence, the district court could downwardly depart.... 

In Algahaim, Judge Newman carries this concept forward to the more open-ended sentencing regime given to us by Booker, Gall and Kimbrough.  Many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.”  E.g., United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (Rakoff, J.).  Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record.  See ABA Criminal Justice Section, “A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes” (November 10, 2014) (last visited December 1, 2016).  To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement” leads to an unduly long sentence.

Because Judge Jon O. Newman was my very first boss as a lawyer (I served as his law clerk from 1993-94 starting just months after my graduation from law school), I am always partial to his opinions and especially as to his opinions about sentencing issues. And, as regular readers know, I am always partial to judicial opinions that thoughtfully explain whether and when the federal sentencing guidelines should or should not be followed. And so, perhaps my partiality is going to bubble over when I assert that Judge Newman is being especially astute and shrewd in his pro-discretion sentencing work in United States v. Algahaim, in part because the particulars of the loss enhancement in Algahaim are actually not all that major.

Specifically, in Algahaim, the two defendants who were appealing their convictions and sentences were subject to offense-level increases for loss of "only" 10 and 12 points  under USSG § 2B1.1(b)(1).  Though such loss enhancements certainly appear significant when added to a base offense level of 6, in many other fraud cases the loss enhancement under 2B1.1(b) can commonly add 16 or 20 or 24 or even up to 30 points.  Despite those realities, the Second Circuit in Algahaim has now called just a 10-level loss enhancement in a fraud case "significant" and also has said this enhancement is alone large enough to merit serious consideration of a below-guideline sentence.  For that reason, I would now expect lots of astute and shrewd future white-collar defendants throughout New York and elsewhere to be citing to Algahaim to bolster arguments for below-guideline sentences whenever the guideline range is moved up a lot by loss calculations.

December 4, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3)

Saturday, December 3, 2016

Another detailed and depressing report on the harms of bad sentencing in the nation's capital

The Washington Post has run a series of articles under the title Second-Chance City seeking to thoroughly "examine issues related to repeat violent offenders in the District of Columbia." The latest lengthy article in the series, headlined "Second-chance law for young criminals puts violent offenders back on D.C. streets," tells a bunch of sad and sobering stories. It starts this way

Hundreds of criminals sentenced by D.C. judges under an obscure local law crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation’s capital.

The original intent of the law was to rehabilitate inexperienced criminals under the age of 22.  The District’s Youth Rehabilitation Act allows for shorter sentences for some crimes and an opportunity for offenders to emerge with no criminal record.  But a Washington Post investigation has found a pattern of violent offenders returning rapidly to the streets and committing more crimes.  Hundreds have been sentenced under the act multiple times.

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes.  The criminals have often repaid that leniency by escalating their crimes of violence upon release.

In 2013, four masked men entered the home of a family in Northeast Washington, held them at gunpoint and ransacked the house.  One of the invaders, Shareem Hall, was sentenced under the Youth Act. He was released on probation in 2015.  Almost exactly a year later, Hall and a co-conspirator shot a 22-year-old transgender woman, Deeniquia Dodds, during a robbery in the District, according to charging documents.  It is unclear who pulled the trigger.  Police said the pair were targeting transgender females.  Dodds died nine days later.  “You’re telling me you can come back out on the streets and rob again, hold people hostage again, kill again — because of the Youth Act?” said Joeann Lewis, Dodds’s aunt.

Hall is one of at least 121 defendants sentenced under the Youth Act who have gone on to be charged with murder in the District since 2010, according to The Post’s analysis of available sentencing data and court records.  Four of the slayings, including the killing of Dodds, occurred while the defendants could still have been incarcerated for previous crimes under mandatory minimum sentencing, and 30 of the killings took place while the suspects were on probation.

Youth Act offenders accounted for 1 in 5 suspects arrested on homicide charges in the District since 2010, a period that has seen a recent surge in homicides and growing public concern about repeat violent offenders.  The cycle of violence has been largely shrouded from public view or oversight. D.C. judges do not track the use of the law, which provides a collection of benefits to violent felons that experts say does not exist anywhere else in the country.

After a young adult is convicted of a crime, the Youth Act allows judges to decide whether the offender can benefit from rehabilitation and should receive special treatment.  The law gives felons a chance to have their convictions expunged from the public record if they serve out their sentences or complete their probation.  Because of the way the law was written, Youth Act offenders also can avoid mandatory prison time for certain violent gun crimes.  The Post also found that judges applying the Youth Act generally give lighter sentences across the board.

The law was enacted in 1985 during the mayoral administration of Marion Barry (D), at a time when jails were being filled with young men charged with drug crimes, in an attempt to protect African American youths from the stigma of lengthy prison sentences. “We have a value in this city that youthful offenders should be rehabilitated,” said D.C. Mayor Muriel E. Bowser. “But I don’t think anybody expects leniency for violent criminals.”

The judges declined The Post’s requests for interviews and also declined to comment about specific cases. In a written statement, the judges said they weigh many factors in sentencing, including the ages of offenders and the effect of their crimes on the victims. “In considering whether to sentence a young person under the Youth Act, generally judges are aware that a felony conviction can create lifelong obstacles to becoming a good and productive citizen,” wrote Lynn Leibovitz and Milton Lee, who are, respectively, the presiding judge and deputy presiding judge of the criminal division of the D.C. Superior Court.

December 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27)

Friday, December 2, 2016

Reviewing another week of developments and questions from Marijuana Law, Policy & Reform

Absent complaints from readers, I think I am going to return to my habit of closing up my "blogging work-week" in this space by providing a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform.  So:

December 2, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

"The Right to Redemption: Juvenile Dispositions and Sentences"

The title of this post is the title of this notable new paper authored by my colleague Katherine Hunt Federle and now available via SSRN. Here is the abstract:

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems.  These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders.  In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing.  The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.  State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of ‘juveniles’ immaturity militates in favor of a right to redemption.  This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed.  The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted.  The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes.  The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions.  This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.

December 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

When will Prez-Elect Trump start bringing "law and order" to deadly Chicago?

120116-ChicagoMurdersThe question in the title of this post is my first reaction to this lengthy depressing USA Today article's headline, "Chicago hits grim milestone of 700 murders for 2016 and the year's not over." Here are particulars:

Mired in a level of violence not seen in nearly two decades, the nation’s third largest city recorded its 701st murder on Thursday, reaching a stunning milestone before year's end.

Chicago has seen the number of killings increase by about 58% since last year, according to police department data. The city is on pace to record the most murders in a year since 1997, when the police department reported 761 killings. Chicago Police have also reported more than 3,300 shooting incidents in 2016, an increase of about 49% compared to the same time last year.

Early Thursday morning, Chicago Police responded to the latest fatal shooting — a 19-year-old man found dead on the street on the city’s West Side with gunshot wounds to his head and chest. As of Thursday afternoon, no one had been arrested for the shooting of the teen. “The levels of violence we have seen this year in some of our communities is absolutely unacceptable,” CPD Superintendent Eddie Johnson said of a murder rate the city has not seen since the end of crack-cocaine epidemic when a drug war between gangs fueled the rise in murders. “CPD will use every tool available to hold violent offenders accountable and will continue to work strategically to address crime and uphold its commitment to rebuild public trust.”

Johnson has blamed the violence on a combination of increased gang activity and weak gun laws that he says don't dissuade convicted felons from carrying and using weapons.

But anti-violence activists say the killings — the bulk of which are occurring in a few low-income and predominantly African-American neighborhoods on the city’s South and West Sides — also raise concerns that a dark edge has set into young people in some of the communities most impacted by the violence. Andrew Holmes, a longtime Chicago-based anti-violence activist, noted that fatal shootings increasingly appear to have been sparked by fights that started on social media and that too frequently the assailants in the deadly incidents are motivated by smallest of slights.... “It’s more personal and about more than the easy access to guns,” Holmes said. “This is driven so much by self-hatred…and because there is an easy access to guns, the first thing they do is go to the gun to settle a feud.”...

About 47% of Chicago's black men, ages 20 to 24, are unemployed, according to a report published earlier this year by the University of Illinois at Chicago’s Great Cities Institute. The national unemployment rate for young black men hovers around 31%. “The problems we’re having have everything to do with opportunity,” [community activist Diane] Latiker said. “It’s always been that way. Chicago has long been one of a ‘Tale of Two Cities.’ Nothing has changed.”

The last two months have been particularly grim. Chicago recorded 316 shooting incidents and 77 murders last month, more than doubling the number of slayings the city saw last November. In October, police tallied 353 shooting incidents and 78 murders, 49 more murders than the same month last year. The violence toll reported by the Chicago Police Department includes only killings that police have determined to be criminal acts. Not included in the data are the 11 fatal police-involved shooting incidents in 2016 — including four officer-involved shootings over a 10-day stretch in November.

The surge in violence coincides with the fraying of relations between the department and the city’s African-American residents following the release last year of video showing the police shooting death of 17-year-old Laquan McDonald. But police officials and community activists downplay the impact that such strained relations is having on the surge in violence.

Social scientists and pollsters suggest that the rise in gun violence in Chicago is having a disproportionate impact on Americans’ perception about crime nationwide. The city has reported over 100 more murders this year than New York City and Los Angeles combined, according to the departments’ data. The murder toll in the two large U.S. cities is about the same as last year.

While the nationwide violent crime rate remains near a 30-year low, nearly 57% of Americans said that crime has gotten worse since 2008, according to a Pew Research Center survey published in November. President-elect Donald Trump on the campaign trail repeatedly spoke out about Chicago’s violence, at one point even comparing the city to a “war-torn country.”

The murder rate for the nation’s 30 largest cities is projected to increase by 13.1% for 2016, according to an analysis published in September by the Brennan Center for Justice at New York University. But nearly half of the projected increase in murders across the U.S. could be attributed to killings in Chicago, the analysis found. (At midyear, the nation’s biggest cities were cumulatively on pace to record 496 more murders than 2015, with Chicago projected to account for 234 of those killings.) “The ‘national” increase in murders…in other words, may owe more to profound local problems in a few Chicago neighborhoods than national trends,” the Brennan Center report concludes.

Mayor Rahm Emanuel announced plans to expand the Chicago’s 12,500-member police force by nearly 1,000 officers over the next two years—an effort that includes bolstering the department’s detective ranks. The department has about 300 fewer detectives than it did in 2008. The department has also stepped up traffic enforcement, parole compliance checks and social service intervention for high-risk individuals in some of the city’s most violence-plagued neighborhoods.

Latiker argued that policing efforts alone will have limited effectiveness in solving Chicago’s violence problems. “We can’t lock up our way out of this problem,” Latiker said. “We need police. There’s no question about that. But you can’t take everything in the basket and throw it at police and tell them to take care of it.”

December 2, 2016 in National and State Crime Data, Who Sentences? | Permalink | Comments (6)

Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21

This new Politico article, headlined "Trump: Supreme Court pick coming 'pretty soon'," suggests that SCOTUS fans may not have much longer to wait to see who might be selected to replace the late great Justice Antonin Scalia on the US Supreme Court:

President-elect Donald Trump said Thursday night he had narrowed his choices for a potential Supreme Court nominee to "three or four" candidates and that a decision would be coming "pretty soon."

Appearing on Fox News from Cincinnati, Ohio, where the president-elect held the first leg of his celebratory "thank you" tour Thursday, Trump told host Sean Hannity that an announcement on a potential judicial appointment is not too far off. "We're going to have to appoint very soon.  We're going to have to come up with a name," Trump said. "I'm looking -- I'm down to probably three or four [candidates].  They are terrific people, highly respected, brilliant people and we'll be announcing that pretty soon too."

The president-elect also assured Hannity that his final selections would be constitutional "originalists."  During his presidential campaign Trump unveiled a list of 21 candidates whom he has said were chosen in the mold of Justice Antonin Scalia, who died Feb. 13.

I have outlined at great length what I hope to see from a SCOTUS pick in this prior post titled "Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list."  Because I seriously doubt that Prez-Elect Donald Trump and/or his advisers care one whit about any of the matters I care about when it comes to SCOTUS appointments, I am not expecting to be pleased or excited by The Donald's pick.  But I am genuinely pleased and excited to be able to imaging a full and fully-functioning Supreme Court in the not-too-distant future.

A few prior related Trumpian SCOTUS posts:

December 2, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?

Abc_dylann_roof1_wg_150716__16x9_992The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:

Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.

Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.

But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”

Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.

I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.

I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.

Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.

Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.

And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....

Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.

In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.

I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his her own inability to serve as his her own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.

A few of many prior related posts on prosecution of Dylann Storm Roof:

December 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Thursday, December 1, 2016

US Sentencing Commission getting an early start on possible guideline amendment

Traditionally, the US Sentencing Commission holds a meeting in January to proposed amendments to the federal sentencing guidelines for the year. But via email today I received this notice about the USSC getting off to a quicker start this season:

Please join the United States Sentencing Commission for a public meeting on December 9th at 11:30 a.m. (ET) where commissioners may vote to publish proposed amendments to the federal sentencing guidelines.

Amendments proposed during the meeting will stem from this year’s list of policy priorities. The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Suite 2-500 (South Lobby). Please note that if you cannot attend in person, it will be broadcast live.

The agenda is as follows:

  • Vote to Adopt August 2016 Meeting Minutes
  • Report from the Chair
  • Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

December 1, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.”  See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment.  The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3).  For the reasons set out below, we affirm the judgment of the district court.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

December 1, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

Download (5)I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform.  But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late.  Here are the substantive highlights:

Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.

“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”

“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."

Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.

The department announced additional details regarding these efforts:

Building a school district within the federal prison system....

Reforming federal halfway houses....

Covering the cost of state-issued IDs prior to inmates’ release....

Enhancing programs for female inmates....

These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.  

I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons.  And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration.  in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.  

Sigh and Grrr.

December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)

NC Republican Senator reiterates his commitment to federal statutory sentencing reform

This notable new local story from North Carolina, headlined "Tillis says he may not return if bills like sentencing changes aren’t passed," provides further reinforcement for my generally positive perspective on the prospects for federal statutory sentencing reform in 2017. Here are excerpts:

Sen. Thom Tillis said Wednesday that he may not seek re-election in 2020 unless a sweeping overhaul of the nation’s prison sentencing system is passed. Tillis, R-N.C., has sought to make revamping the nation’s criminal justice system one of his signature issues since arriving in Washington in 2015, leaning on his experience in pushing through North Carolina’s Justice Reinvestment Act when he was state House speaker in 2011.

Tillis said North Carolina showed that such measures could get done, even over doubts that anything less than a tough-on-crime stance would be politically damaging. He told a forum on juvenile justice in Washington that “I don’t run again until 2020, and if we’re not able to get things like this done, I don’t have any intention of coming back.”...

He expressed frustration that the Senate hasn’t been able to move the Sentencing Reform and Corrections Act of 2015, a bipartisan measure that would reduce prison sentences for some nonviolent drug offenses, give judges more discretion with lower-level drug crimes and provide inmates early release opportunities by participating in rehabilitation programs....

Republicans and conservatives – from Sen. John Cornyn, R-Texas, to Sen. Rand Paul, R-Ky., to the Koch brothers – found themselves largely in agreement with Obama, the NAACP and the American Civil Liberties Union on the need for sweeping changes to reduce prison sentences.

But the Senate bill has been in legislative limbo. Some conservative lawmakers, such as Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, suggested that reducing sentences would lead to dangerous criminals being released. Even a much-heralded compromise in April to ease critics’ concerns failed to get the bill to the Senate floor.

Tillis, who appeared at Wednesday’s forum hosted by The Washington Post with Sen. Chris Coons, D-Del., said he had a solution for breaking the deadlock. “We need to tell the far-right and the far-left to go away and have people in the center solve the problem,” Tillis told the audience. “It is time to tell the far-left and the far-right to get productive or get out of the way because we need to solve this problem.”

December 1, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Wednesday, November 30, 2016

"The Coming Federalism Battle in the War Over the Death Penalty"

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

From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct.  However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States.  And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level.  While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level.  However, no federal courts of appeals has yet addressed these objections.

Currently, thirty-one States authorize capital punishment while nineteen do not.  The category of non-death penalty States includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large States, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty.  It is also likely that capital punishment will be retained in many States, particularly in the South and West, and at the federal level.  Given these premises, the use of the federal death penalty in non-death States, which is now mostly a side issue in the death penalty debate, may take on more prominence.  As the demand for retribution against the very worst murderers in these States continues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court.  Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.

November 30, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"

Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting.  For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."  

Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing.  Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.  

Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers.  I recommend the piece in full, and here are excerpts:

Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.”  One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.

Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses.  The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups.  Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....

On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs.  This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies.  The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....

Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...

Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.

November 30, 2016 in Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (3)

Two new headlines from the same paper highlighting (inevitable?) sentencing disparities

As I opened my Google News feed and turned to my sentencing section, these two headlines from the Washington Post jumped out at me:

Here are some key passages from each piece. First, the latest on serial/mass rapist Darren Sharper:

Former NFL star Darren Sharper was sentenced to 20 years in prison on Tuesday for drugging and raping two women in Los Angeles.  The sentence came as part of a plea deal that saw Sharper sentenced to 18 years in prison in Louisiana in August for drugging and raping up to 16 women in four states, including California and Louisiana, as well as Arizona and Nevada.  Sharper will serve the sentences simultaneously.

Tuesday marked the end of Sharper’s sentencing hearings, but the emotional trauma he inflicted upon the victims of his sexual assaults lives on.  “I can only imagine myself lying there like a vegetable while he took advantage of my body without my permission,” one of the victims said at Tuesday’s hearing (via the Los Angeles Times).  “I have lost every bit of self confidence I’ve ever had and am always in fear while alone. It doesn’t matter whether it’s day or night, I can see a guy and automatically in my head think, ‘What if this guy tries to rape me?’ ”

And now another dispatch from the never-ending federal drug war:

When Lori Clare Kavitz’s sons were 3 and 4 years old, ... her husband ... grabbed a gun and killed himself in front of her dad.... The aftermath was hard. “My emotional trauma and fear of not being able to provide for [my sons] led me to choices that I will always regret,” she says. Her regretful decision-making was not of an uncommon variety: After her husband’s death, she got involved with the wrong guy. He started dealing meth from their home, and when he was arrested, the state went after her, too, casting her as his assistant and charging her with conspiracy to distribute meth.

The man who sold them the meth cooperated with prosecutors, was sentenced to 14 years in prison, and is now out. Her boyfriend got 20 years. Lori Kavitz got 24 years. “She kept her mouth shut, didn’t say anything,” her son, Collin, tells the Watch. “He opened his mouth and tried to pin it all on her.”

Kavitz hasn’t seen her two sons in more than a decade because it’s too expensive for them to travel more than a thousand miles to visit her in prison in a different state. “I have 3 grandchildren that I have never met as I am serving my time in Florida and I am from Iowa. Too far for young struggling families to travel,” Kavitz writes. She’s one of thousands of nonviolent drug offenders hoping to have their sentences commuted by President Obama before President-elect Donald Trump replaces him in office — less than two months from now.

November 30, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Tuesday, November 29, 2016

Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?

Washington_terry1The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning.  The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:

Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.

Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities.  I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC.  I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.

Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas.  As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69.  But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence.  In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).

I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation.  Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled.  (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.)  Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.

Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.  My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins.  But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess.  For Bobby James Moore, this is obviously now a matter of life and death.  But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?

November 29, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"

Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG.  I recommend the lengthy piece in full, and here is just a taste:

Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.

Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.

But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.

We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....

Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.

President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....

These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....

This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.

As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.

November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)

"Why Trump needs to roll back criminal penalties for noncriminal conduct"

The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:

Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.

For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979.  They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.

Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker.  To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting.  Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.

The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.

In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations.  Trump says in his first 100 days he wants to see two regulations removed for every one regulation created.  Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....

Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative....  As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair.  In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."

The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety.  Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law.  However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.

Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.

November 29, 2016 in Criminal justice in the Trump Administration, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Monday, November 28, 2016

Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"

Image (1)I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:

Earlier today the Supreme Court heard argument in Beckles v. United States.  Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework.  The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.

In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary.  Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker.  He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.”  The current advisory system, according to Dreeben, “injects law into the sentencing process.”

As the Beckles argument illustrates, the middle path that the Court has carved is complicated.  The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated.  Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect.  Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.

The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions.  The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world.  But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive.  The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence.  In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence.  The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)

Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument.  Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts.  And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.

Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case.  At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over.  But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.”  Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government.  Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts.  And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines.  I admire Dreeben for making this appeal to the Justices.  But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity.  Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.

Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.

But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future.  For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences.  So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case.  For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya.  The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C).  So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.

November 28, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (6)

Mapping out the Trumpian new world order with respect to federal sentencing reform

This article from The Hill, headlined "Trump marks change for criminal justice reform," effectively details the uncertain terrain for federal sentencing reform in the wake of this month's historic election. Here are excerpts:

President-elect Donald Trump won’t close the door on criminal justice reform, but the path forward may be complicated by his campaign rhetoric and pick to lead the Department of Justice, advocates say.... Trump’s calls for law and order, his vow to jail immigrants who are in the U.S. illegally and his pick of Sen. Jeff Sessions (R-Ala.) as attorney general have also left some criminal justice reform advocates concerned.

“I’d be lying if I told you I wasn’t concerned about Sessions as attorney general,” said Danyelle Solomon, who serves as the director of Progress 2050, a Center for American Progress project focused on diversity. “There are a lot of concerns ... that he will be a barrier to data-driven, policy-driven reforms in this space," she said. "I think he creates a challenge."

Sessions voted against the Senate bill to reduce certain mandatory minimum prisons sentences when it came before the Senate Judiciary Committee over a year ago, leaving some worried that he'd be a barrier for reform moving forward. But conservative criminal justice reforms advocates remain optimistic about Sessions, noting he authored the Drug Sentencing Reform Act in 2001 to decrease the amount of powder cocaine and increase the amount of crack cocaine necessary to trigger mandatory minimum sentences.

“Sessions isn’t monolithically opposed to reform, but he does demand a high standard for legislation that’s put in front of him,” said Derek Cohen, deputy director of Right on Crime. With Sessions as attorney general, Cohen said lawmakers might hammer out better legislation that may actually reduce costs and recidivism rates.

Jessica Jackson Sloan, national director and co-founder of #Cut50, argued "there's a really strong conservative pull on this administration" to continue pushing for criminal justice reform. Sloan is expecting reforms to focus more on re-entry, over-criminalization and initiatives in the private sector to get formerly incarcerated people back into the workforce.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement to The Hill that he’s spoken to ranking member John Conyers (D-Mich.) about getting an early start on reform measures in the new Congress. “I look forward to talking with President-elect Trump and his administration about the problems facing the criminal justice system and our ideas for reform,” he said. "There is bipartisan agreement that many aspects of our criminal justice system need reform."

Goodlatte pointed to successes GOP governors have had in making reforms at the state level. “It is my hope that this will be an issue we can all work on together in 2017,” he said....

Opponents of criminal justice reform, however, argue the door for criminal justice reform was never open to begin with. Bill Otis, an adjunct professor of law at the Georgetown University Law Center, claims reform never really had a chance of passing Congress when President Obama was in office and has even less of a chance under Trump.

The former federal prosecutor said advocates had a leg up with the support of the Obama administration and with that came a forum and resources. “Now all that will disappear,” he said. “Trump ran explicitly as a law-and-order candidate. If he had a good word to say about reducing prison sentences, I didn’t hear it.”

Advocates are refusing to throw in the towel. Last week, the partners of the U.S. Justice Action Network sent a letter to Trump encouraging him to make criminal justice reform a top priority in his first 100 days. “We share your goal of enhancing public safety and encourage you to consider that, just as with energy policy, it requires an all-of-the-above strategy,” they wrote. “That is, just as we recognize those who pose a danger to society must be behind bars, for many others such as addicts and those with mental illness public safety can best be advanced through treatment-based approaches.”

November 28, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Many SCOTUS Justices seems disinclined to find vagueness problems with sentencing guidelines given backdrop of unguided sentencing discretion

I have only just gotten started reading the transcript of the oral argument in Beckles v. United States (which is available here), and the first set of big questions suggests some Justices are not drawn to a basic sentencing vagueness claim.  Consider these passages from early in the transcript, which I have tweaked stylistically for improved exposition:

JUSTICE ALITO: Let me ask you a more fundamental question. And I don't want to unduly shock the attorneys who are here from the Sentencing Commission, but imagine there were no sentencing guidelines.  So you have a criminal provision that says that a person who's convicted of this offense may be imprisoned for not more than 20 years.  That's all it says.  Now, is that unconstitutionally vague?

MS. BERGMANN: No, Your Honor.

JUSTICE ALITO: Well, that seems to be a lot vaguer than what we have here. So how do you -- how do you reconcile those two propositions?

MS. BERGMANN: Well, Your Honor, we submit that arbitrary determinant sentencing such as with a vague guideline is not the same as an indeterminate sentencing scheme such as the Court described.  Our position is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.

JUSTICE BREYER: And there is more arbitrariness because of this guideline than there was before the Guidelines were passed? Is there any evidence of that? I have a lot of evidence it wasn't.

MS. BERGMANN: Well, I think, Your Honor, it's especially so here because --

JUSTICE BREYER:  Especially so.  Is it so at all? There was a system before the Guidelines exactly as Justice Alito said.  Moreover, that system is existing today side by side with the Guidelines in any case in which the judge decides not to use the Guidelines.  So I don't get it. I really don't. And you can be brief here, because it's really the government that has to answer this question for me.  I don't understand where they're coming from on this, and you don't have to answer more than briefly, but I do have exactly the same question that Justice Alito had....

CHIEF JUSTICE ROBERTS: Well, if the indeterminate sentencing is all right, it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied....

JUSTICE KENNEDY: Well, but your argument applies to State systems as well, and you're telling us that the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness....  Your argument is sweeping.  And you're saying the more specific guidance you give, the more dangers there is of unconstitutionality.  That's very difficult to accept.

These statements notwithstanding, the extraordinary presentation by Deputy Solicitor General Michael Dreeben (who has long been my all-time favorite SCOTUS advocate) may have helped move at least some of the Justices to better appreciate how the career offender guidelines could be deemed unconstitutionally vague in the wake of the Johnson ACCA ruling back in summer 2015.

November 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (15)

Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?

Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform.  Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.

That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here.  Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place.  During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department.  So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted.  Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015). 

I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders.  Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider.  The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular.  But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.

Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation.  I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review.  Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.

I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons).  But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.

November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, November 27, 2016

Interesting and exciting sentencing week as SCOTUS gets back to work

For sentencing fans who pay special attention to the Supreme Court, November has been not all that interesting so far. But after a series of arguments on civil cases earlier in the month, the last few days of SCOTUS argument this November has all sort of intriguing issues for sentencing fans. Here are the basics and links to previews from SCOTUSblog of the exciting week to come:

Monday Nov 28: Beckles v. United States:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines 

 

Tuesday Nov 29: Moore v. Texas:

Issue: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Argument preview: Court returns, again, to the death penalty and the intellectually disabled

 

Wednesday Nov 30: Jennings v. Rodriguez:

Issue: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

Argument preview: The constitutionality of immigrant detention

November 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

AP report provides confusing non-answer as to "What is the future of U.S. prisons under Trump administration?"

The quoted question in the title of this post comes from the headline of this AP article.  Because there are a number of strange and confusing elements to this AP piece, I am not sure it does even a reasonable job trying to answer the question it poses.  I will explain some of my concerns with this quirky piece after quoting it at length with some highlighting of key phrases and passages:

The population of American prisons is likely to rise for the first time in nearly a decade with President-elect Donald Trump’s promise to detain and deport millions of immigrants who are in the country illegally and his selection of tough-on-crime Sen. Jeff Sessions to the nation’s highest law enforcement post.

If so, one of the prime beneficiaries would be the private companies that operate many of the nation’s prisons. The stock market seems to agree.  A day after the election, CoreCivic Co., formerly Corrections Corporation of America, saw the biggest percentage gain on the New York Stock Exchange with shares climbing 43 percent.  Shares of Geo Group, another private prison company, also jumped 21 percent.

The federal prison population had been trending down for nearly a decade when the Obama administration announced in August that it would phase out its use of some private facilities.  The announcement followed a Justice Department audit saying private facilities have more safety and security problems than government-run lockups.  The policy change did not cover private prisons used by Immigration and Customs Enforcement, though federal officials have said they are considering phasing out private contractor immigration facilities.

Trump, however, said during his campaign that the nation’s prison system was a mess and voiced support for private prisons. “I do think we can do a lot of privatizations and private prisons. It seems to work a lot better,” Trump told MSNBC in March, though he didn’t offer any details on what that might mean for the federal prison system.

Immigration and Customs Enforcement holds up to 34,000 immigrants awaiting deportation.  Forty-six of the roughly 180 facilities in which ICE holds those immigrants are privately run, with about 73 percent of detainees held in the private facilities, the agency says.

“Trump was saying during his 100-day plan that mandatory minimums for people re-entering the country would be set at two years -- that’s going to require a longer-term need for beds,” said Michael Kodesch, a senior associate with financial services firm Canaccord Genuity Inc. Immigration detention centers are particularly profitable for private prison companies because they command a higher rate for each inmate bed, he said....

Sessions, Trump’s pick for attorney general, was among a handful of Republican senators blocking a bipartisan bill that would reduce lengthy sentences for low-level drug offenders.  McLaurine Klingler, a spokeswoman for Sessions, said no one on Sessions’ staff was immediately available to talk about his feelings on the DOJ’s use on private prisons.

CoreCivic spokesman Jonathan Burns said the company doesn’t take positions on proposals, legislation or policies that would determine the basis of an individual’s incarceration or detention.  He said the company instead works to “educate lawmakers on the benefits of public-private partnership generally and the solutions CoreCivic provides.”

I likely would need to write a few law review articles to unpack all the hash in this AP report, but the second highlighted passage above reveals a big part of the mess that this article reflects.  Specifically, the AP article suggests that "private companies ... operate many of the nation’s prisons";  But folks at ACLU note here that "for-profit companies are responsible for approximately 6 percent of state prisoners, 16 percent of federal prisoners, and inmates in local jails in Texas, Louisiana, and a handful of other states."  In other words, private companies actually operate a very small percentage of the nation's prisons.

As the AP article hints, Prez-Elect Trump and his administration might want to grow rather than shrink reliance on for-profit companies for incarceration.  (Even if true, it would matter a lot whether Trump would want just the federal system or also state systems to make greater use of private prisons.)  But Trump's comment praising privatization seems based on a (sound?) view that the very best private prisons might function more effectively and efficiently than the very worst public prisons responsible for our current mass incarceration "mess."   So, even if Prez-Elect Trump and his administration were to make a huge commitment to, say, doubling the use of private prisons nationwide, that commitment alone would not itself make it "likely" for the "population of American prisons ... to rise" in the coming years.  (Indeed, given the incarceration reform measures enacted in key states at the same time Trump was elected president, I am inclined to predict that it is more likely we will see some declines in the population of American prisons in the coming years.)

Finally, though it is true AG-designate Jeff Sessions was opposed to federal statutory sentencing reform throughout 2016 while serving as Senator Sessions from Alabama, his departure from the Senate might now make it more likely that some form of federal statutory sentencing reform gets passed by Congress in 2017 or 2018.   This is true not only because Sessions may get replaced in the Senate by someone at least slightly more likely to support federal statutory sentencing reform, but also because opposition to reform by a number of Senators in 2016 was based in part on a desire to preclude Prez Obama from having a legacy criminal justice reform achievement.  Once Prez Obama is out the door and the (toxic?) symbolism of his affinity for sentencing reform is just a recent memory, I think some (modest?) form of federal statutory sentencing reform is likely to make it through Congress before too long.

November 27, 2016 in Prisons and prisoners, Who Sentences? | Permalink | Comments (13)

"Oregon Death Penalty: A Cost Analysis"

The title of this post is the title of this notable research report released earlier this month.  This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:

A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.

Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.

Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.

The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.

Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.

According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”

Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.

November 27, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, November 26, 2016

Terrific content and context for Prez Obama's clemency work at Pardon Power

DebLong-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices.  Of particular importance and value, P.S. Ruckman's work at  Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency.  Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:

Obama's 1,000th Commutation: Hold the Fireworks.

Obama Could (Should) Go EPIC.

Obama's Legacy: Institutional Change v. An "Example"

Turkey "Pardons." Why?

Obama: Breaking Records in a Broken System

Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:

It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence.  It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.

By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams.  It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term.  But there appears to be little concern about it on any front. So, it is what it is.

Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses.  And these grants have — for the most part — been granted late in his second term.  Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....

The federal prison population has boomed since Wilson's day.  The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone.  The merciless neglect of the current clemency system needs to tanked.  The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy.  The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.

It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States.  It is time for mercy to emerge once again as a regular feature of criminal justice.  It's not just about numbers.  It is about balance, fairness.  It is about rehabilitation and restoration.  It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.

November 26, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

So many marijuana reform developments and questions, with so many more on 2017 horizon

Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform.  But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.  

The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:

November 26, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver

This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:

Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven.  Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....

Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.

In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.

"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."

Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.

Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.

To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence.  And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified.  Hmmm.

November 26, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, November 25, 2016

New talk in New Jersey of bringing back capital punishment a decade after state abolition

Download (23)The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature.  Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty."  Here are the highlights:

Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty.  "But I do believe it's an option that should be there, however seldom used."

The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963....  Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.

In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.

Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there.  The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.

Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs.  Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report.  The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually.  The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.

Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected.  "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River.  Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.

Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.

West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.

Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."

Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms.  Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment.  Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state.  Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.

November 25, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (10)

"Intuitive Jurisprudence: Early Reasoning About the Functions of Punishment"

The title of this post is the title of this intriguing new research essay from a group of academics connected to the University of Chicago's Department of Psychology.  The piece, authored by Jessica Bregant, Alex Shaw and Katherine Kinzler, has been posted on SSRN with this abstract:

Traditional research on lay beliefs about punishment is often hampered by the complex nature of the question and its implications.  We present a new intuitive jurisprudence approach that utilizes the insights of developmental psychology to shed light on the origins of punishment intuitions, along with the first empirical study to test the approach.

Data from 80 child participants are presented, providing evidence that children expect punishment to serve as a specific deterrent, but finding no evidence that children expect punishment to have a general deterrent or rehabilitative effect.  We also find that children understand punishment in a way that is consistent with the expressive theory of law and with expressive retributivism, and we present evidence that an understanding of the value of punishment to the social contract develops throughout childhood.

Finally, we discuss the application of the intuitive jurisprudence approach to other important legal questions.

November 25, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 24, 2016

Thankful for so much for so many reasons ... including all sorts of 2016 sentencing law and policy developments

Reviewing some past Turkey Day posts, I noticed my wise tendency to just express thanks in this space on this day for giving thanks.  For example, this post five years ago started this way: "I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start. I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that." I now find it funny and fitting that circa 2016 I cannot even remember what folks were spending so much time complaining about on Thanksgiving 2011.

In the wake of a jarring election season and result, I know what most folks are busy complaining about now.  But I remain thankful for so much for so many reasons today, and that includes an array of interesting and dynamic sentencing law and policy developments that transpired over the last year. (I will wait until next month to do a few formal 2016-in-review posts about sentencing developments, but I am eager now to assert that I think everyone who follows sentencing law and policy can and should find something encouraging to be thankful for this holiday season.)

And, speaking of being thankful and 2016 sentencing law and policy developments, I want to remind readers of this Federal Sentencing Reporter call for commentaries.  And, just to stir the pot, I will also link to two prior Turkey Day posts that might generate some engaging discussions:

What SCOTUS sentencing cases are you thankful for?

What SCOTUS sentencing cases are you least thankful for?

November 24, 2016 in On blogging, Who Sentences? | Permalink | Comments (3)

Wednesday, November 23, 2016

"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy

The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett.  But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:

One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia.  And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:

1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...

Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....

The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.

2. The court will get back to hearing its normal caseload.

During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016....  [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.

3. The court is not going to undo affirmative action programs — at least not immediately....

4. The court could move to weaken labor unions and expand gun rights. 

For complicated reasons, I am not sure I would make book on most of these predictions.  But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).

November 23, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (9)