Monday, July 21, 2014

Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell

Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend.  Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:

It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.

I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte.  But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules."  (Chaidez, Summerlin, Lambrix, etc.).  I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar.  That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way.  Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule.  In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief.  Hence, the rule here was "new."

Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule).  Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?).  I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final.  Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred.  There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.

I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis.  I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies.  I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks.  But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?

Of course, I am troubled by many aspects of the case, not just the Teague analysis.  That's just the tip of the iceberg for me.  But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong.  My mind is open.  But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right).   At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine. 

Recent related posts:

July 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

"Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons"

The title of this post is the title of this important and timely new paper authored by two terrific criminologists, Professors Joan Petersilia and Francis T. Cullen, and now available via SSRN. Here is the abstract:

A confluence of factors — a perfect storm — interfered with the intractable rise of imprisonment and contributed to the emergence of a new sensibility defining continued mass imprisonment as non-sustainable. In this context, reducing America’s prisons has materialized as a viable possibility.  For progressives who have long called for restraint in the use of incarceration, the challenge is whether the promise of downsizing can be met.

The failure of past reforms aimed at decarceration stand as a sobering reminder that good intentions do not easily translate into good results.  Further, a number of other reasons exist for why meaningful downsizing might well fail (e.g., the enormous scale of imprisonment that must be confronted, limited mechanisms available to release inmates, lack of quality alternative programs).  Still, reasons also exist for optimism, the most important of which is the waning legitimacy of the paradigm of mass incarceration, which has produced efforts to lower inmate populations and close institutions in various states.

The issue of downsizing will also remain at the forefront of correctional discourse because of the court-ordered reduction in imprisonment in California. This experiment is ongoing, but is revealing the difficulty of downsizing; the initiative appears to be producing mixed results (e.g., reductions in the state’s prison population but increased in local jail populations). In the end, successful downsizing must be “liberal but not stupid.”  Thus, reform efforts must be guided not only by progressive values but also by a clear reliance on scientific knowledge about corrections and on a willingness to address the pragmatic issues that can thwart good intentions.  Ultimately, a “criminology of downsizing” must be developed to foster effective policy interventions.

July 21, 2014 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

July 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Sunday, July 20, 2014

Tragic and personal criminal justice story: the killing of Professor Dan Markel

Like many other law professors and bloggers, I was stunned and deeply saddened upon learning yesterday that Florida State University law professor Dan Markel died after having been shot at his home.  Paul Caron at Tax Prof has this post, Death of Dan Markel (1972-2014), with news reports and links to postings by other law profs and bloggers.

Dan was a personal friend, and his extraordinary commitment and contribution to big ideas in criminal law and theory during his (much too short) life cannot be easily overstated. Of particular note, Dan was among the most active and forceful voices seeking to define and defend a modern conception of retributive justice. For that reason and many others, I hope those responsible for this shocking crime are brought soon to justice.  

All those who were close to and cared for Dan are in my thoughts and prayers. RIP Professor Dan Markel.

July 20, 2014 in On blogging | Permalink | Comments (4) | TrackBack (0)

Saturday, July 19, 2014

US Attorney for NJ: "Ex-offenders get time, now they need opportunity"

Especially in the wake of this US Sentencing Commission's big decision yesterday to vote for retroactive application of its new reduced drug guidelines (basics here and here), a recent opinion piece by the U.S. Attorney for the District of New Jersey, Paul Fishman, struck me as especially timely. This piece is headlined "Ex-offenders get time, now they need opportunity," and here are excerpts: 

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don't succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn't enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney's Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the "ReNew" program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program's efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity....

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you....

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

July 19, 2014 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines

I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:

The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015.  This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....

The Commission predicts that more than 46,000 will be eligible to seek a reduction.  Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.

UPDATE:  Here is a link to the USSC's official press release about its vote, which starts this way:

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward.  Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015.  Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."

July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Furman and randomness (not just delay) at heart of California capital ruling

As discussed here and here, U.S. District Judge Cormac Carney earlier this week declared all of California's death penalty system unconstitutional in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here).  Because much of the opinion documents how "California’s death penalty system [has become] so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," much criticism of the opinion questions how a very long delay between a death sentence and an execution could alone render a sentence unconstitutional.  As noted before, Kent Scheidegger here at Crime & Consequesnces has stressed that few Justices have taken "seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it."  And now Orin Kerr here at The Volokh Conspiracy explains why he "found the [Jones] opinion unusually weak" given all the "obvious puzzles raised by delay-based Eighth Amendment claims."

Though decades of delay between a death sentence and possible execution is part of the equation of the Judge Carney's ruling in Jones v. Chappell, I see the concept of randonmess to be more fundamental and more fundamentally important to Judge Carney's constitutional conclusion.  Judge Carney cites repeatedly the various opinions in the Supreme Court's 1972 landmark ruling in Furman v. Georgia which found an Eighth Amendment violation based ina state's sentencing process making it essentially random (or "arbitrary") who ultimately gets sentenced to die among a large pool of eligible capital defendants.  I read Judge Carney's opinion as extending Furman by concluding that the Eighth Amendment is also violated if and when a state's appeals process makes it essentially random (or "arbitrary") who ultimately gets executed among among a large pool of condemned defendants sentenced to die

Because Furman remains good law (and obviously has nothing to do with execution delay), I think there is a little more "juice" to the ruling in Jones v. Chappell than suggested by those whose criticisms are focused only on execution delay aspects of the ruling.  Indeed, in order to keep the focus on Furman and randomness, consider a variation on a hypothetical statute present to students when discussing Furman.  Consider, dear readers, if you think a state would be constitutionally allowed to pass a capital law along these lines:

Because of the huge costs associated with adequate appellate review of death sentences, state appeals courts should randomly select (via a fair lottery process) only 1 out of every 50 death sentences to be subject to full and fair appellate review each year.  All death sentences shall be indefinitely stayed (and no execution date imposed) unless and until a death sentence has been is randomly selected for, and properly subject to, full and fair appellate review.

Of course, California has not formally passed such a law.  But Judge Carney's ruling (rightly) finds that California functionally operates its capital punishment system this way AND then (questionably) concludes such a capital punishment system violates the Eighth Amendment based on Furman

Recent related posts:

July 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack (0)

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Lots of notable discussion of yesterday's notable decision striking down California's death penalty

As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional.  Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.

The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death."  I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:

  • From Dan Markel here at PrawfBlawg, "What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision"

  • From Bill Otis here at Crime & Consequesnces, "A Miranda-type Prophylaxis for the Death Penalty"

  • From Ruthann Robson here at Constitutional Law Prof Blog, "California Federal Judge Declares Death Penalty Violates Eighth Amendment"

  • From Kent Scheidegger here at Crime & Consequesnces, "The Lackey Claim" Again

July 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"

I have long stressed my belief that many federal sentencing reform efforts can and should be viewed as a cause that ought to attract politicians and people with true conservative principles.  This recent Wall Street Journal opinion piece, headlined "An Opening for Bipartisanship on Prison Reform," authored by Newt Gingrich and Pat Nolan echoes this point. Here are excerpts:

Several states have passed meaningful reforms, including expanding drug courts to order mandatory drug treatment programs, increasing funding for drug and mental-health treatment, and limiting costly prison beds to violent and serious repeat offenders. These state reforms passed in part thanks to conservative support.

Right on Crime, a national organization founded in 2010 that we both belong to, is helping spread the word that backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause.

On a panel at the annual Conservative Political Action Conference in March in National Harbor, Md., Texas Gov. Rick Perry explained how reform worked in his state. In 2007, Texas scrapped plans to build more prisons, putting much of the savings into drug courts and treatment. The results have been impressive: Crime in Texas is at the lowest rate since 1968. The number of inmates has fallen by 3%, enabling the state to close three prisons, saving $3 billion so far. What inspired the reform, Gov. Perry said, was this: "Being able to give people a second chance is really important. That should be our goal. The idea that we lock people up, throw them away, never give them a chance at redemption is not what America is about."

In 2010, South Carolina followed Texas' example, toughening penalties for violent criminals while creating alternatives to incarceration for nonviolent offenders. These included providing community drug treatment and mental health services for lower-level lawbreakers—mostly drug and property offenders—who made up half of the state's prison population. South Carolina also increased funding for more agents to supervise offenders in the community. Three years later, the prison population has decreased by 8%, and violent offenders now account for 63% of the inmate population. South Carolina's recidivism rates also are much improved and the state has closed one prison.

Other states—Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi—have adopted similar reforms. As is so often the case, the states are showing the way. Congress should apply these common-sense reforms to the federal prison system.

The reforms have developed in the states, as conservatives tend to prefer. But now that there is proof that prison reform can work, the debate has gone from an ideological discussion to evidence-based changes that can be applied to the federal system.

Republican Sens. John Cornyn and Ted Cruz, who have seen the benefits firsthand in Texas, have been joined by Republican Senate colleagues such as Rob Portman, Marco Rubio, Mike Lee, Jeff Flake and Ron Johnson in backing one or more prison-reform bills. Two bills, the Recidivism Reduction and Public Safety Act (S. 1675) and the Smarter Sentencing Act (S. 1410) have already passed the Senate Judiciary Committee and await action by the full Senate.

In the House, Republican Reps. Jason Chaffetz, Raúl Labrador, Trey Gowdy and others are backing similar legislation. This push for reforming the federal prison system has support on the other side of the aisle as well. Such liberal stalwarts as Sens. Dick Durbin, Patrick Leahy and Sheldon Whitehouse, and Reps. John Conyers, Bobby Scott and Jerrold Nadler have signaled their backing.

July 17, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

"Recalibrating Justice: A Review of 2013 State Sentencing and Corrections Trends"

The title of this post is the title of a notable new report from the Vera Institute of Justice. The report, available via this link, checks in at less than 50 pages and provides a terrific accounting of state-level reforms nationwide. This one-page summary provides these highlights:

In 2013, 35 states passed at least 85 bills that largely eschew the tough-on-crime policies of the past.  Lawmakers exhibited a willingness to pursue change consistent with the growing body of research that demonstrates carefully implemented and well-targeted community-based programs and practices can produce better outcomes at less cost than incarceration.  In particular, states enacted legislation to:

> Reduce prison populations and costs.  States repealed or narrowed mandatory sentencing schemes, reclassified offenses, or altered sentencing presumptions. States also sought to expand access to early release mechanisms — such as good time credits —designed to accelerate sentence completion.

> Expand or strengthen community-based sanctions.  States introduced or strengthened community corrections programs proven to reduce recidivism.  Some states expanded eligibility for diversion programs — a sentencing alternative through which charges will be dismissed or expunged if a defendant completes a community-based program or stays out of trouble for a specified period.  States also expanded community-based sentencing options, including the use of problem-solving courts.

> Implement risk and needs assessments. Several states focused on the use of validated risk and needs assessments as the basis for implementing individualized offender case plans.  These states passed laws requiring assessments of an offender’s risk of recidivism as well as his or her criminogenic needs — characteristics, such as drug addiction and mental illness — that when addressed can reduce that risk.  States incorporated these assessments at different points in the criminal justice process — at the pre-trial stage, at the pre-sentencing stage, or to inform supervision and programming, whether in prison or in the community.

> Support the reentry of offenders into the community.  States passed laws to mitigate the “collateral consequences” of criminal convictions — such as restrictions on housing and social benefits and exclusion from employment.  In some states, legislators sought to clarify, expand, or create ways to seal or expunge criminal records from the public record. Others focused on helping offenders transition from prison or jail back into the community by increasing in-prison and post-release support.

> Make better informed criminal justice policy.  A number of states sought a deliberate discussion about the purpose and impact of proposed sentencing and corrections legislation and looked to external groups to debate proposals, collect and analyze data, and formulate policy recommendations. Some states even passed legislation requiring fiscal or social impact statements in order to help legislators consider the ramifications of proposed criminal justice reforms.

July 16, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Federal district judge declares California's death penalty unconstitutional under Eighth Amendment

An notable new opinion by a (Republican-appointed) federal district judge in California is sure to be the talk of the death penalty community for the forseeable future and is also sure to be the basis for a intriguing coming appeal to the Ninth Circuit (and perhaps the Supreme Court). The opinion in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available for download below), is authored by a GWB-appointee Cormac Carney, and it is described by the judge as an "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE." Here is how the 29-page opinion start and ends:

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California.  Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment....

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.

Full opinion:  Download Jones Cal DP opinion

July 16, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"

The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution.  These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate.  Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression.  Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death.  Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement.  Other narratives focus on ideas of rational choice and personal autonomy.  This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.

The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison.  The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars.  My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions. 

July 16, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Latest polling shows rich, white, midwestern guys aged 30-44 most likely to favor pot legalization

As this press release details, the "latest research from YouGov shows that most Americans (51%) support legalizing marijuana, while 37% oppose it."  And, as the title of this post highlights, I find especially interesting the demographics of which groups of persons are most in favor of legalization as reflected in these detailed breakdowns:

Male: 54% to 36%

Age 30-44: 60% to 28%

Democrat: 62% to 27%

White: 52% to 37%

Income $100+: 57% to 32%

Midwest: 55% to 31%

Cross-posted at Marijuana Law, Policy and Reform

July 16, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Intriguing sparring over victims' rights in Colorado massacre capital case

This local article from Colorado, headlined "James Holmes case: Death penalty foe Bob Autobee's letter to victims stirs controversy," reports on a notable fight which has broken out concerning victims and victims' rights in high-profile capital cases.  Here are excerpts:

Does the father of a victim in one death-penalty case have the right to contact family members in another capital case?  And, under Colorado law, do prosecutors have any obligation to facilitate that conversation — even if the discussion isn't going to help their cause? The questions are key to a new controversy in the case of accused Aurora theater shooter James Holmes.

The current subject of raging debate in local criminal justice circles is DIVO — not the pioneering weird-rock band, but an acronym for Defense Initiated Victim Outreach, a program that's assuming a growing role in high-stakes cases.   As Melanie Asmar recently reported, the defense team representing Holmes has accused prosecutors of impeding their attempts to contact victims of the 2012 Aurora theater shootings, while prosecutors have claimed that the defense is improperly using the DIVO process to try to sway victims to oppose the death penalty.

But what hasn't been publicly disclosed — thanks largely to Judge Carlos Samour's insistence on redacting the blank out of public pleadings in the Holmes case — is that one of the people seeking to reach out to victims is Bob Autobee, whose own views on the death penalty underwent a dramatic reversal as the effort to execute his son's killer dragged through the courts for almost twelve years.

In 2002, Autobee's son Eric, a 23-year-old correctional officer, was fatally attacked in the kitchen of the Limon prison by inmate Edward Montour Jr., who was already serving a life sentence for killing his eleven-week-old daughter.  Montour pleaded guilty to murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury.  Bob Autobee, initially a strong supporter of the death penalty, gradually became disheartened by the numerous delays in the case and began to push for a life sentence instead.

After meeting with Montour in a restorative justice session, Autobee began picketing the Douglas County courthouse to protest Eighteenth Judicial District Attorney George Brauchler's insistence on pursuing Montour's execution; Brauchler's office even filed a motion in the case seeking to prevent Autobee from addressing the jury at trial.  But the case never got that far.  Last March, just as the trial was starting, startling new evidence suggested that Montour may have been wrongly convicted in the infant death that put him in prison in the first place.  Shortly thereafter, prosecutors agreed to let Montour plead guilty to first-degree murder and receive a life sentence.

A few weeks ago, Montour attorney David Lane, an outspoken opponent of the death penalty, forwarded a letter from Autobee to one of the victims in the Holmes case, urging the victim to distribute it to others.  In the letter, Autobee invites victims to meet with him so he can "offer my insights into this emotional roller coaster in hopes that it may help you to both understand the process you are going through with the prosecution and trial of James Holmes, and to share with you how I finally came to a place of peace and tranquility after fighting the pain and torment I was undergoing for ten years." See the letter below.

Lane says the first victim he contacted evidently decided not to distribute the letter.  A second contact sent the letter to a victim's advocate in the DA's office, "who never distributed it to anyone," Lane says. And that, the attorney suggests, is part of a deliberate effort by prosecutors to squelch DIVO efforts in the Holmes case.

"There's a statute in Colorado that says victims must be informed of their right to participate in restorative justice processes," Lane notes.  "The DAs never tell victims that they have that right or explain what the process is. They're doing everything in their power not to expose any of the [theater shooting] victims to DIVO — because they saw what happened in the Montour case. When Bob Autobee was exposed to DIVO, he did a complete turnaround on the death penalty."

July 15, 2014 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack (0)

Careful examination of California's "mixed" record with realignment

14069-prisons_petersiliaEvery serious criminal law and criminology researcher knows and respects (or should know and respect) the work of Joan Petersilia.  Consequently, what she has to say about California's prison realignment realities necessarily garners my attention, and it is set forth in this Sanford Report headlined "California's prison realignment plan needs adjustments, Stanford law professor says."  Here are excerpts:

When California embarked on a sweeping prison realignment plan in 2011, The Economist described it as one of the "great experiments in American incarceration policy." The challenge was to shift inmates from overcrowded state prisons to jails in California's 58 counties.

At this point, the results are mixed and the "devil will be in the details" as tweaks to the original legislation are urged, according to new research by a Stanford law professor.

"Only time will tell whether California's realignment experiment will fundamentally serve as a springboard to change the nation's overreliance on prisons," wrote Stanford Law School Professor Joan Petersilia, a leading expert on prison realignment, in her article in the Harvard Law and Policy Review. "It is an experiment the whole nation is watching."...

"If it works, California … will have shown that it can downsize prisons safely by transferring lower-level offenders from state prisons to county systems. … If it does not work, counties will have simply been overwhelmed with inmates, unable to fund and/or operate the programs those felons needed, resulting in rising crime, continued criminality and jail overcrowding," wrote Petersilia, co-director of the Stanford Criminal Justice Center.

In an interview, she noted that the 2008 economic crisis prompted state and local governments to cut costs and find efficiencies in their prison and jail systems. Plus, people are now thinking differently about punishment. "The public no longer believes that prisons are the answer for lower-level offenses [drug crimes, minor thefts], and also is more aware of the hugely damaging effects [inability to get a job] of imposing prison terms on those who really aren't dangerous," said Petersilia, who also has forthcoming research on prison policy.

Petersilia's research for the Harvard Law and Policy Review article consisted of interviews with 125 people in law enforcement, courts, probation departments, victim service agencies and offenders themselves. These sessions were conducted in the second year of the realignment. Subjects were asked how realignment was working and what fixes were needed. "The findings illustrate that realignment gets mixed results so far," wrote Petersilia, who described counties as struggling heroically to carry out an initiative seemingly imposed on them overnight.

Probation officials were the most optimistic about realignment, the interviews revealed. They believed that mental health agencies and the courts could reduce recidivism, but that it will take time to coordinate and implement rehabilitation programs that do not compromise public safety.

Though most participants agreed that realignment is spurring greater collaboration and innovation on how to efficiently incarcerate criminals, problems exist, according to the research. For example, counties are now dealing with more sophisticated criminals, lack of space and concern that the state's problem of overcrowding could become local problems as well. Finally, some prosecutors were disappointed in the "deep jail discounts" — reduced time behind bars — given to arrestees due to the crowded jails, she said....

Petersilia urges legislative revisions to California's realignment plan (some are now under discussion in the legislature). Suggestions include:

  • Requiring that all felony sentences served in county jail be split between time behind bars and time under supervised release (probation), unless a judge deems otherwise
  • Allowing an offender's entire criminal background to be reviewed when deciding whether the county or state should supervise them
  • Capping county jail sentences at a maximum of three years
  • Allowing for certain violations, such as those involving domestic restraining orders or sex offenses, to be punished with state prison sentences
  • Creating a statewide tracking system for all offenders
  • Collecting data at the county and local level on what is and is not working in realignment

    "These recommendations should reduce the burden realignment has placed on counties," wrote Petersilia. She said several counties are taking advantage of split sentencing with promising results. Still, only 5 percent of felons in Los Angeles County have their sentences split. She called this type of flexibility "extraordinarily important" to realignment, as it would lessen space and cost burdens for counties. "Most county officials believe realignment can work – if the state will work with them to tweak the flaws in the original legislation," she wrote.

The full Harvard Law and Policy Review article, which is titled "California Prison Downsizing and Its Impact on Local Criminal Justice Systems," is available via this link.

July 15, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

"Moneyball Sentencing"

The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct.  Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education).  The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.

Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence.  This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.  This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile.  It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.

July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack (0)