Thursday, October 8, 2015

House Judiciary leaders set to introduce (distinct?) big bipartisan sentencing reform bill

As detailed in this press release from the House Judiciary Committee, this morning Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) are going to release the detail of the House Judiciary Committee’s bipartisan criminal justice reform initiative.  Here is the statement from the pair:

For the past several months, the House Judiciary Committee has been working on a bipartisan basis on several bills to ensure our federal criminal laws and regulations appropriately punish wrongdoers, are effectively and appropriately enforced, operate with fairness and compassion, protect individual freedom, safeguard civil liberties, work as efficiently as possible, do not impede state efforts, and do not waste taxpayer dollars.

As a result of this work, we are pleased to announce that we, along with Crime Subcommittee Ranking Member Sheila Jackson Lee and a bipartisan group of leaders on this issue, will introduce companion legislation to the sentencing reform portion of the Senate bill unveiled last week by Senators Grassley, Durbin, Cornyn, Leahy, Booker and others.

We are also continuing our work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform, including youth and juvenile justice issues, improved criminal procedures and policing strategies, and civil asset forfeiture reform and we expect to roll out more bills addressing these topics over the coming weeks.

I am very excited to learn that the House is going to have its own version of the Senate's SRCA 2015 making the rounds. This news makes me a bit more optimistic that Congress could get a sentencing reform bill passed at to the desk of the President before the end of 2015.

Recent prior related posts on SRCA 2015:

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Wednesday, October 7, 2015

Astute review of (too-often neglected and really critical) back-end criminal justice developments

The October issue of Governing magazine has this lengthy new article that effectively spotlights aspects of criminal justice punishment systems that have too often been ignored or overlooked. The article merits a read in full, and its extended headline highlights why everyone should be interested in the stories within: "The Changing Relationship Between Ex-Criminals and Their Parole Officers: Rather than acting as former offenders' enemies, parole and probation officers are now working to be their mentors. Can it reduce recidivism?". Here are excerpts:

Oftentimes, parole and probation officers are the only positive role models offenders have. About a decade ago, criminologists began asking if parole and probation visits were a missed opportunity for law enforcement.  What if officers developed a more supportive relationship with offenders?  What if they demonstrated to clients that they weren’t just checking boxes and delivering sanctions?  The working theory was that given some personal attention, offenders might be more receptive to advice about resolving conflicts and avoiding crime.
Amid a flurry of academic journal articles and pilot projects, researchers from the University of Cincinnati developed EPICS, short for Effective Practices in Community Supervision, a new model for structured face-to-face meetings between officers and their clients.  While universities in Australia and Canada produced similar approaches based on the same underlying theory, EPICS has become the go-to model for parole and probation in much of the United States.  Since 2006, more than 80 state and county criminal justice departments have adopted EPICS....
By focusing on behavioral change, rather than just threats of being thrown back in jail, EPICS and similar efforts may help break the cycle of incarceration. “I don’t think the majority of people on supervision like being criminals,” says Scott Taylor, who runs the department of parole and probation in Multnomah County. “They just can’t figure how to get out of it.”

Law enforcement agencies in this country have been engaged in community supervision for more than 150 years, basing their practice on the idea that some convicted criminals can reintegrate into society, so long as they meet with assigned officers on a regular basis.  Community supervision takes two primary forms: probation and parole.  Generally speaking, probation is an alternative to incarceration, and parole is early release from prison.  People on probation tend to be convicted of less serious offenses than people on parole....

EPICS is part of a larger change that is developing within the nation’s parole and probation systems.  Parole boards are under scrutiny for keeping people in prison without explaining why they don’t qualify for supervised release in the community.  Many states have changed sentencing requirements so that nonviolent offenders are increasingly the responsibility of local jails and community supervision agencies, not state prisons.  Parole and probation officers are using risk assessment tools to concentrate services on the people who are most likely to reoffend.

Since 2000, anywhere from 4.5 million to 5 million adults have been under community supervision in a given year, but as prisons come under increasing pressure to lower their inmate populations, the number of offenders on parole and probation is certain to grow. In the past, parole and probation agencies have generally ignored research that suggests ways to reduce recidivism; the field has been stuck in a mode of monitoring and enforced compliance.  As more offenders are released to community supervision, however, agencies are showing an interest in ideas designed to cut down on criminal behavior.  EPICS is one of those ideas.

October 7, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

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

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

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

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

Previewing Kansas capital case day for SCOTUS argument

The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty.  (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:

Argument preview: Justices to tackle Eighth Amendment — again:

The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment.  The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional.  The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death.  The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case —  sharply divided. 

SCOTUS Considers the Wichita Massacre:

Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

UPDATEThis short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."

Folks can surmise the basis for this media view by checking out the transcripts in Kansas v. Gleason, Kansas v. Carr, and Kansas v. Carr now available here and here.

October 7, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, October 6, 2015

"Unsophisticated Sentencing"

The title of this post is the title of this notable paper about a notable federal sentencing provision authored by Miriam Baer and now available on SSRN. Here is the abstract:

This essay, written for the Wayne Law Review’s 2014 Symposium on white collar crime and sentencing, examines the rising popularity of the “sophisticated means” enhancement under Section 2B1.1 of the United States Sentencing Guidelines. Over the past decade, the rate at which federal courts apply the enhancement in criminal fraud cases has more than tripled.

This Essay considers several possible explanations for the enhancement’s increasing prevalence, including the possibilities that: (i) fraud offenders as a whole have become more sophisticated; (ii) federal prosecutors are investigating and charging more sophisticated frauds; and (iii) the enhancement’s meaning has, over time, gradually expanded to include additional conduct, a phenomenon I refer to as “sentencing creep.” With this final explanation in mind, the Essay concludes with some practical advice for reinvigorating the enhancement as a useful sorting device.

October 6, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Texas completes lethal injection not long after Montana judge finds state's lethal drugs problematic

Two notable lethal injection developments in two states on late Tuesday.  Here are the headlines and parts of the stories:

"Texas Executes Juan Garcia, 11th Inmate of Year"

Texas on Tuesday executed its 11th inmate of this year — a man who killed a former missionary during an $8 robbery when he was a teenager.  Juan Garcia, 35, received a lethal injection and was was pronounced dead at 6:26 p.m. (7:26 p.m. ET).  He was executed for the 1998 murder of Hugh Solano, who had just moved to Houston from Mexico to give his children a better education.

The Texas Board of Pardons and Paroles rejected Garcia's clemency bid in a 5-2 vote last week. Garcia in the past fought execution with claims of mental impairment, but had no appeals pending Tuesday morning.

Garcia apologized to Solano's relatives in Spanish ahead of the execution, and Solano's wife and daughter sobbed and told the inmate they loved him.  "The harm that I did to your dad and husband — I hope this brings you closure," Garcia said.  "I never wanted to hurt any of you all."

As the dose of pentobarbital began, he winced, raised his head and then shook it. He gurgled once and snored once before his movement stopped.  He was pronounced dead 12 minutes later.

"Montana Judge Blocks State from Using Execution Drug"

A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely.  District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.

The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon — Montana’s only two death row inmates — argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.

The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates.  Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”

October 6, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

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

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

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

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

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

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

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

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

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing

As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page).  Here is how he summarized some portions of this Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner:

A collection of people who have lost loved ones, including friends and family, to violent murders submitted an amicus brief in support of the petitioner in Montgomery v. Louisiana. Their argument is both emotional and sensible; it does not appeal to the formalisms of legal argument or precedent.

At its heart, this brief addresses the emotional and personal impact of locking away a person away forever for a crime they committed as a child. This brief pleads the Court to acknowledge the merits of leniency, compassion, and the rehabilitative potential of children. All of the stories contained in this brief are moving and important. Here are a few summarized excerpts.

Jeanne Bishop

“Jeanne Bishop lost her younger sister, Nancy Bishop Langert, brother-in-law Richard Langert, and their unborn child on April 7, 1990.” Brief for Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner, Montgomery v. Louisiana, (No. 14-280), at 4. Sixteen year-old David Biro shot and killed the couple in their home after breaking into their home while they were out and lying in wait for their return. After a two-week trial, David was convicted of the murders and sentenced to mandatory life without parole—the only possible punishment for a double-murder committed by a child in Illinois. Neither Jeanne nor anyone else in her family was not allowed to make a victim impact statement during sentencing.

Due to her religious beliefs, Jeanne forgave David, but she was happy that he “would be locked up forever.” Id. at 5. However, over time, Jeanne’s belief that David was a remorseless killer came under question and she decided to write to him. In response, David sent Jeanne a 15-page letter confessing to the crime for the first time and expressing “deep regret.” Id. Jeanne began to visit David in prison after this initial correspondence and has developed a “strong, honest, and respectful” relationship with him. Id. at 6.

“Jeanne knows that many want to write off people like David because, in their mind, people like him can never change. But, she wonders ‘whether what we are truly afraid of is not that they will never get better, but that they might.’” Id.

Linda White

On November 18, 1986, Linda White’s 26 year-old daughter Cathy was murdered by two teenage boys. Id. at 10. The boys asked Cathy for a ride out of town to avoid abusive parents. After Cathy had agreed and driven the boys a distance, the boys brandished guns and ordered Cathy to pull over. After stopping the car, the boys raped Cathy and shot her four times.

After being arrested, one of the boys — Gary — pled guilty to the murder. Gary, who was 15 years old at the time of the murder, was sentenced to 54 years in prison.

Many years after he was incarcerated, Gary agreed to let Linda, his victim’s mother, visit him. “When Linda and Gary finally met, Linda found that he was no longer the child who had callously raped and killed her daughter. Gary was a different person – a remorseful grown man who was desperately seeking both forgiveness and a chance to start making up for all of the hurt that he had inflicted.” Id. at 12.

As of 2015, “Gary has been out of prison for nearly six years. In that time, he has immersed himself in a new community, found and held a job, and begun working with drug and alcohol addicts at his church in a role in which his minister says he has made an incredible difference. Gary has kept himself out of trouble. He and Linda remain in contact, and he never stops apologizing for the pain that he caused. To Linda, Gary is a perfect example for why life sentences are so unjust, especially for children.” Id.

Prior posts in series:

October 6, 2015 in Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

"Federalism, Federal Courts, and Victims’ Rights"

The title of this post is the title of this notable new article by Michael Solimine and Kathryn Elvey available via SSRN. Here is the abstract:

A striking development in American criminal justice in the past forty years is the widespread adoption and acceptance of the rights of victims, at both the federal and state levels.  A notable exception to this innovation has been the repeated, unsuccessful attempts, continuing to the present day, to pass a Victims’ Rights Amendment to the U.S. Constitution.  The considerable scholarly literature on the VRA has not rigorously examined the putative need for the VRA from a federalism perspective, a task this article undertakes.

The article examines the history of the victims’ rights movement, and of the repeated attempts to pass the VRA.  We argue that both supporters and critics of the VRA have not convincingly addressed federalism issues raised by the potential adoption of the VRA.  In contrast, we argue that functional principles of federalism suggest that the VRA and nationalization of victims’ rights is unnecessary.  On the other hand, we argue that there is one way that the federal government can recognize state development of victims’ rights. In habeas corpus actions in federal court, challenging state court convictions, we argue that victims of state crimes should be permitted and encouraged to participate in those proceedings, in ways not generally permitted to date.

October 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)

Monday, October 5, 2015

Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015

I am quite pleased to see that, in the wake of introducting in the US Senate the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here), two prominent GOP Senators (one old guard, one new guard) have taken to the op-ed pages to explain what they are doing.   Politics_Grassley_620Here are links to these op-eds:

From (old guard) Senate Judiciary Chair Charles Grassley in the Des Moines Register here, "I'm working for criminal justice reform."  Excerpts:

For the last several months, I’ve listened, worked, negotiated and built consensus with my colleagues on an important public policy that governs crime and punishment and has a sweeping effect on the citizenry.  The nation’s criminal justice system serves the accused and the aggrieved in our society. And the taxpaying public foots the bill for our courts, law enforcement and prisons that protect public safety and serve justice....

Notwithstanding the merits of mandatory minimums that are designed to promote the public good and public safety, federal sentencing has come under increased scrutiny for locking up low-level offenders and incarceration rates that are running up an unsustainable tab to American taxpayers, roughly $80 billion annually. There’s no doubt that drug and human trafficking and gang-related crimes continue to persist and poison the well of civic life, endangering public safety daily.  And yet, there’s room for sensible reforms that improve the criminal justice system so that it’s fair and just to victims, the accused and taxpayers.  The right policy mix of reforms can give low-level offenders who have paid their debts to society a second chance to rejoin their families and find employment in their communities.

This week I introduced the bipartisan Sentencing Reform and Corrections Act of 2015. It reflects carefully crafted sentencing reforms to achieve fairness, justice and fidelity to the rule of law.

Our proposed reforms give the courts more flexibility in federal sentencing laws for non-violent, low-level drug offenders, including the elimination of the three strikes mandatory life provision.  We also expand the existing safety valve and add a second safety valve that provide relief from the 10-year mandatory minimum for certain low-level offenders.  It would retroactively apply the Fair Sentencing Act of 2010 that reduced the sentencing disparity between crack and powder cocaine criminal drug offenses.

We also target and expand some of the existing mandatory minimums so that law enforcement can continue to pursue violent repeat offenders and gun criminals.  And we create new mandatory minimums for crimes involving interstate domestic violence and the export of weapons and other defense articles to prohibited countries and terrorists.

The scales of justice require equal rights under the law for the accused and for victims of crime.  Fairness in a criminal justice system also must consider the opportunity for reintegration.  Our bill would require the Department of Justice to classify all federal inmates and assign qualifying prisoners to a recidivism reduction program.  This may include job training, drug recovery, faith-based and work and education programs that provide eligible inmates an opportunity to earn early release.

There’s a fine line between leniency and levelheadedness.  That’s why I’m working for balanced reforms that do not compromise public safety and national security.

From (new guard) Senator Mike Lee in the Washington Examiner here, "The conservative case for criminal justice reform."  Excerpts:

The problem today is not simply that penalties are too harsh or sentences too long — though in many cases they are.  The problem is that, over the past several decades, we have industrialized and bureaucratized our criminal, judicial and penal systems.

Which is to say, we've turned them into unaccountable, short-sighted, input-oriented, self-interested institutions — immune to common sense — that treat offenders as statistical cases rather than human beings.

For conservatives, criminal justice reform is not a venue for the airing of ideological grievances or the testing of fashionable theories.  It's about helping our communities stay as safe and secure as possible, while infringing as little as possible on the God-given, equal rights of all Americans and their pursuit of happiness.

It's about designing our laws, our court procedures and our prison systems on the basis of a clear-eyed and time-tested understanding of human nature — of man's predilection toward sin and his capacity for redemption — as well as an uncompromising respect for the fundamental dignity of the human person.  Criminal justice reform, properly understood, is an invitation for principled conservatism at its best.  Our bill expands judicial discretion, so judges can treat offenders like human beings, not statistics, and punish them according to their particular circumstances, instead of indiscriminate bureaucratic guidelines.

It broadens the federal "safety valve" — a provision that allows federal judges to sentence a limited number of offenders below the mandatory minimum sentence.

The bill also improves the quality of our federal prison system, so that we have fewer first-time offenders turning into career criminals. It will expand inmates' access to vocational training, therapeutic counseling and reentry services that help offenders who have fulfilled their sentences return to their families, their communities, and lawful, steady jobs.

Reforming our federal criminal justice system doesn't require us to avert our eyes from a person's crimes, or make excuses that blame someone, or something, else for the choices he made.  No, it requires looking squarely at the facts of the case, no matter how ugly or wicked; holding offenders directly and personally accountable for their crimes; and devising a punishment that fits both the crime and the criminal.

We do this all the time in our daily lives when we recognize the humanity of hating the sin, not the sinner.  It's called forgiveness.  Forgiving is not the same thing as excusing. Nor is it incompatible with punishment.

Forgiveness requires assigning blame and, when necessary, imposing punishments — which is to say forgiveness requires treating offenders as morally responsible individuals — as human beings who, like the rest of us, have the propensity for vice and for virtue, and who must be held accountable for their choice of one or the other.

We know that no man is without sin.  Now, we must remember — in our hearts and in our laws — that no man is without hope.  This is why I'm involved — and invite you to join me — in the conservative movement for criminal justice reform.

The two lines I will remember from the pieces are sure to be "There’s a fine line between leniency and levelheadedness," and "we must remember — in our hearts and in our laws — that no man is without hope."

Recent prior related posts on SRCA 2015:

October 5, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Previewing the early criminal law cases on the SCOTUS docket

In this post at the Federalist Society blog, Kent Scheidegger provide an effective preview of the handful of Supreme Court cases dealing with criminal law issues that are to be heard by the Supreme Court in the first few weeks of its new Term. As regular readers know and as Kent notes, a number of the early cases involve the death penalty, and this recent Wall Street Journal article highlights the capital case concentration in an article headlined "Supreme Court Docket Loaded With Death-Penalty Cases."

But before the capital case kvetching gets started in earnest, the first criminal justice case to be heard by the Justices comes on Tuesday with Ocasio v. United States.  At SCOTUSblog here, Rory Little has this lengthy preview of Ocasio, which gets started this way:

The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not?  The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation.  But unless I misunderstand it, the general question is as old as the common law.

October 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Via summary reversal, SCOTUS rejects state court determination of ineffective defense

At the end of this long SCOTUS order list (which kind of marks the official start of a new Supreme Court term, OT15) is a short per curiam opinion in Maryland v. Kulbicki, No. 14-848 (S. Ct. Oct. 5, 2015). The opinion provides a notable win for prosecuors, starting and ending this way:

A criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U. S. Const., Amdt. 6.  We have held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel. Gideon v. Wainwright, 372 U. S. 335, 344 (1963).  Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are “so serious” that he no longer functions as “counsel,” and prejudicial, meaning his errors deprive the defendant of a fair trial.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki’s defense attorneys were unconstitutionally ineffective. We summarily reverse....

Given the uncontroversial nature of [Comparative Bullet Lead Analysis] CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.”  Rompilla v. Beard, 545 U.S. 374, 389 (2005).  The Court of Appeals demanded something close to “perfect advocacy” — far more than the “reasonable, or CBLA competence” the right to counsel guarantees.  Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).  

Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.  (We need not, and so do not, decide whether the supposed error prejudiced Kulbicki.)  The petition for writ of certiorari is granted, and the judgment of the Court of Appeals for Maryland is reversed.

October 5, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Missouri Gov commutes death sentence at last minute because...............??

The quirky question in the title of this post is my reaction to this notable capital clemency news out of the Show Me state that leaves me wishing the chief executive of the state had showed all of us more about his reasons for communiting a death sentence only days before a scheduled execution.  Here are the (somewhat mysterious) details via this local article headlined "Nixon commutes death sentence for convicted murderer Kimber Edwards":

Missouri Gov. Jay Nixon commuted on Friday the death sentence for Kimber Edwards, who was convicted in the 2000 murder-for-hire of his ex-wife, to a life sentence without parole. Edwards had been scheduled to be executed by injection at 6 p.m. Tuesday. His attorneys had recently asked the Missouri Supreme Court to throw out his conviction and death sentence because of doubts raised about his guilt.

Nixon did not explain his surprise decision, other than to say it came after a “thorough review of the facts” and was “not taken lightly.” He said the evidence supported the jury’s decision to convict Edwards of first-degree murder.

“After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”

Reached later Friday, a spokesman for Nixon said he would not elaborate.

Kimberly Cantrell, 35, was shot twice in the head in her apartment in the 1100 block of Midland Avenue in University City on Aug. 22, 2000. Authorities said Edwards had hired Orthell Wilson to kill Cantrell, Edwards’ ex-wife, to prevent her from testifying in a child-support hearing.

One of Cantrell’s siblings, Chuck Cantrell of San Jose, Calif., said that his family was informed of the decision less than five minutes before it was made public. Cantrell spoke to a legal adviser for the governor but wanted to speak to Nixon himself. “I would think that the governor would certainly understand that his action of this magnitude certainly has impact on the survivors of the victim,” he said. “I just can’t imagine that his office could be so callous. I would hate to think this would be some sort of political maneuver. It doesn’t make a whole lot of sense.”

He said family members had had no plans to witness the execution, but that didn’t mean they didn’t care about the case. He said he and his family had no doubt about Edwards’ guilt and that they knew how Edwards could manipulate a situation to his advantage. Edwards’ attorneys had recently tried to cast doubt on his guilt. They focused on two statements that were central to his case. One was a statement by Wilson, who said Edwards had hired him to kill Cantrell in 2000. The other was a confession from Edwards.

Wilson, who is serving a life sentence without parole, has recanted his statement, telling a Post-Dispatch reporter in April that he had acted alone and had lied about being hired by Edwards. He then signed an affidavit saying so. Edwards claimed at his trial — and ever since — that he was innocent. In new appeals, his attorneys pointed to the possibility that police had coerced his confession. They claimed Edwards has a form of autism that could have made him vulnerable to aggressive interrogation techniques, leading him to make a false confession.

Edwards’ attorney, Kent Gipson of Kansas City, petitioned the state Supreme Court to throw out the conviction for murder and armed criminal action, and the death sentence, and appoint a special master to review Edwards’ innocence claim. The court denied in July a similar request to study Edwards’ claim of innocence. The court has not yet ruled on Gipson’s petition. But he said he made the same case to lawyers from Nixon’s office this week.

“We’re all very happy because (days leading up to an execution are) always a very stressful and difficult time for everyone, the clients, the lawyers and the family,” Gipson said. “It’s a load off everyone’s shoulders, particularly the client, because he’s going to live.”... Gipson said the commutation of the death sentence would give him and Edwards more time to potentially seek a new trial.

In recent days, Gipson had been pressing a claim with Nixon’s office that during the penalty phase after Edwards’ conviction, the prosecutor in the case had inquired whether Edwards would be willing to waive appeals in the case in exchange for life in prison. But his supervisors refused.

According to notes in the attorney’s file from 13 years ago, Judge Mark D. Seigel expressed in chambers that he was unhappy about the lack of a deal to spare Edwards. Reached Friday, Seigel said that he did not remember the conversation and that it “does not sound like something I would have said in chambers or anywhere else.”

I presume that lingering concerns about guilt prompted the Governor's actions here, but it would be helpful if the commutation statement spoke to that possibility or whatever else might have motivated the Governor to act in this way.   I think it is entirely appropriate and readily justifiable for a clemency board or a governor to commute a death sentence based on concerns about residual guilt.  But I do not consider it appropriate or justifiable for a decision made on this basis (or others) to be hidden behind the kind of cursory statement offered by Gov Nixon in this case.

October 5, 2015 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Sunday, October 4, 2015

"Toward Saner, More Effective Prison Sentences"

The title of this post is the headline of this New York Times editorial discussing the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) introduced by US Senate leadership late last week. Here are excerpts:

The sentencing reform bill introduced in the Senate on Thursday falls far short of what is needed, but it is a crucial first step on the long path toward unwinding the federal government’s decades­long reliance on prisons as the answer to every ill....

Among the most significant are those that would reduce mandatoryminimum sentences for many drug crimes.  These sentences are jaw-droppingly long — from five years for a first offense up to life without parole for a third.  The new bill would cut the life sentence to a 25­year minimum, and would cut the 20­year sentence for a second offense to 15 years.

These may seem like minor tweaks to pointlessly long sentences, and for the most part they are.  But when half of all federal inmates are in for drug crimes, even small changes can make a real difference.

In addition, the bill would give federal judges more power to impose sentences below the mandatory minimum in certain cases, rather than being forced to apply a strict formula. This would shift some power away from prosecutors, who coax plea deals in more than 97 percent of cases, often by threatening defendants with outrageously long punishments.

Other provisions would give more inmates the chance to earn early release by participating in educational and other rehabilitative programming; seal or expunge juvenile records, so people are not burdened for life because of crimes they committed when they were young; and make it easier for older inmates to seek early release — a smart idea because they are by far the costliest to keep imprisoned and the least likely to commit new crimes.

Finally, and critically, many parts of the bill are retroactive, which means thousands of current federal inmates could benefit immediately.  In particular, 6,500 prisoners are still serving time under an old law that punished crackcocaine offenses far more severely than powder­cocaine offenses.  When the law was altered to reduce the disparity in 2010, the change applied only to new cases, leaving thousands of inmates serving unjustly long sentences for no good reason....

So much of American sentencing policy has been driven by irrational, fact­free scare­mongering.  This new bill would, at the very least, provide volumes of data that could show — as other legislative efforts have already shown — that it’s possible to reduce both prison populations and crime at the same time.

Recent prior related posts:

October 4, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Three of Kettle Falls Five get sentenced to real federal time for marijuana grow in Washington state

As reported in this AP article, headlined "Marijuana growers sentenced to federal prison," a high-profile federal marijuana prosecution, in a state in which marijuana slaes are now legal, culminated in sentencing late last week. Here are the details:

The three remaining defendants in the case of the so-called Kettle Falls Five were sentenced to federal prison on Friday for growing marijuana in a state where both the medical and recreational use of marijuana are legal under Washington laws.

The defendants are known as the Kettle Falls Five because of their original number. They were convicted earlier this year of growing marijuana on their rural property near Kettle Falls, in violation of federal law.

Rolland Gregg was sentenced Friday to 33 months in prison, followed by three years of probation. His wife Michelle Gregg, 36, was sentenced to one year in prison and three years of probation. Rhonda Firestack-Harvey, 56, who is Rolland Gregg's mother, was also sentenced to one year in prison and three years of probation.

All three remain free pending the outcome of appeals.... The case had been closely watched nationally by marijuana activists, who criticized the federal government for prosecuting marijuana growers in a state where cannabis is legal.

Assistant U.S. Attorney Earl Hicks rejected the notion that the defendants were growing the pot for their own medical use. "This is a for-profit marijuana grow," Hicks said. "It has nothing to do with medical marijuana."

Prosecutors contended the defendants grew more than 100 pounds of marijuana in 2011 and 2012, far in excess of their personal needs. Defense attorneys argued for sentences of probation only. "This was not a for-profit marijuana grow," said attorney Phil Tefleyan, who represented Rolland Gregg.

Larry Harvey was excused from the case when he was diagnosed with pancreatic cancer last year and has since died. Family friend Jason Zucker accepted a plea deal from federal prosecutors and testified for the government at trial in exchange for a 16-month penalty.

The remaining three were convicted in March by a federal jury of growing between 50 and 100 marijuana plants on their rural property, which was searched by investigators in 2012. Since then, Washington has also legalized the recreational use of marijuana. But growing and possessing marijuana remains a crime under federal laws.

The defendants did not dispute that they grew marijuana, but contended they grew less than the government alleged. The jury exonerated them of more serious charges of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

October 4, 2015 in Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Strong crime and punishment coverage of drugs, guns and more via Vox

I remain a bit unsure of what Vox is and who is behind all of Vox Media, but I am sure that Vox has recently done a lot of good and important work on a lot of topics that should be of great interest to criminal justice fans.  Here are headlines and links:

October 4, 2015 in Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1)

Highlighting how state education spending decreases as state corrections spending increases

Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years.  The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding."  Here are excerpts (with links from the original):

Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences.  According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.  

That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said.  "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."

A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools.  And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."

According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut. 

Prior recent related post:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, October 3, 2015

"Why Don’t Courts Dismiss Indictments? A Simple Suggestion for Making Federal Criminal Law a Little Less Lawless"

The title of this post is the title of this notable Green Bag article authored by James Burnham. Here are excerpts from the article's introduction:

Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. It is a recurring theme in academic literature and it featured prominently in Justice Kagan’s recent dissent in Yates v. United States, where she described “the real issue” in the case as being “overcriminalization and excessive punishment in the U.S. Code.”...  [Many commentators] often jump directly to the Constitution as the solution to this problem, specifically the Due Process Clause and an emphasis on fair notice as a way to narrow vaguely worded statutes.

That is a good idea, but it overlooks a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law–making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints. Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.

October 3, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, October 2, 2015

"What happens when Americans in prison come home?"

The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:

We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester.  We asked them: what did prison do, or undo, in you?  What do you see now that you didn’t see then?  And what don’t we know about you?

It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s.  Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison.  Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too.  As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?

Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Top Oklahoma court puts all executions on hold upon state request after drug snafu

As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:

The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.

Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."

Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.

On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.

October 2, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How to Fight Modern-Day Debtors’ Prisons? Sue the Courts."

EJUL-slide-3The title of this post is the headline of this Marshall Project report on recent litigation brought by Alex Karakatsanis and his Equal Justice Under Law non-profit. Here is the start of the report (with links from original):

A young civil-rights attorney in Washington, D.C., is suing courts across the country for jailing defendants unable to afford their bail, court fines, and probation fees.  As a result, cities in Alabama, Missouri, Mississippi, and Louisiana have recently done away with bail for misdemeanors and traffic violations.

The lawyer, 31-year-old Alec Karakatsanis, has now filed a federal lawsuit against Rutherford County, Tenn. and the private company it contracts with to collect court debts. According to the lawsuit, that company, Providence Community Corrections, ran “an extortion scheme” that “conspired to extract as much money as possible” from people who were threatened with jail time if they couldn’t pay court fees and fines.

PCC is “user funded,” which means the company does not charge the county for its services but depends solely on fees paid for by people on probation.  Some of those fees include “supervision fees,” costs for drug tests and classes, and even a $25 fee for those applying for fee reductions. Before Rutherford County outsourced its probation services to PCC in 1996, the county was only collecting a fraction of fees, PCC State Director Sean Hollis told the Daily News Journal in 2014.

PCC collected over $17 million from probationers in Rutherford County between 2009 and 2014, according to the Daily News Journal. Rutherford County Judge Ben Hall McFarlin told the paper at that time: “The county didn't pay for anyone to get that money," adding that he had never sentenced anyone to jail if their only violation was a failure to pay. "I don't see where the taxpayers would disagree with that.”

The lawsuit was filed on behalf of seven plaintiffs and alleges that indigent defendants in Rutherford County have lost their jobs, houses, cars, and even sold their own blood plasma to make payments and avoid jail time.

“Everything about this scheme is in flagrant violation of U.S. constitutional law, federal law, and even specific Tennessee law,” Karakatsanis told The Marshall Project. In Tennessee, it’s illegal to imprison a person over court debt.  

The suit was brought under a federal anti-corruption law accusing PCC and Rutherford County of operating a “racketeering enterprise” that misuses “the probation supervision process for profit.” A spokesman for PCC, Jeff Hahn, wrote in a statement that PCC's "mission is to encourage people to complete their probation successfully per the terms set by the courts." He added that "in each of the states we serve, we steadfastly comply with the laws governing the probation system."

It’s just the latest salvo from Karakatsanis, who helped start Equal Justice Under Law, a nonprofit civil-rights organization. Karakatsanis and co-founder Phil Telfeyan, 32, started their organization in 2014 with a grant from their alma mater, Harvard Law School, in order to challenge inequalities in the criminal justice system. The organization often works in partnership with local attorneys and nonprofits.

In November 2014, the city of Montgomery, Ala., agreed to terminate its contract with a private probation company as part of a settlement with Equal Justice Under Law.  The lawsuit alleged that indigent people in Montgomery were being jailed over their inability to pay their court debts.  Similar lawsuits were filed in 2015 against municipal courts in Ferguson, Mo., Jennings, Mo. and New Orleans, La., although those cities do not rely on private probation companies to collect debts.

Equal Justice Under Law has also sued six jurisdictions over their bail systems, and all six no longer require defendants to pay bail as a condition of their release. The organization filed a seventh lawsuit, in Calhoun, Ga., in early September.

October 2, 2015 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Virginia completes execution of multi-state serial killer

As reported in this AP piece, last-minute appeals with claims of disability did not thwart Virginia's plans to execute a multiple murder last night:

Virginia has executed a convicted serial killer who claimed he was intellectually disabled. Alfredo Prieto was pronounced dead at 9:17 p.m. on Thursday at the Greensville Correctional Center in Jarrat.

The 49-year-old had fought to prove that he's intellectually disabled to bar the state from putting him to death. But a federal appeals court in Virginia upheld his death sentence in June and the U.S. Supreme Court refused Thursday to block his execution.

Prieto was sentenced to death in Virginia in 2010 for the rape and murder of 22-year-old Rachael Raver and the slaying of her boyfriend Warren Fulton III more than two decades earlier. The El Salvador native had already been on death row in California for the rape and murder of a 15-year-old girl at the time.

Notably, as the Death Penalty Iinformation Center details here, there are three more executions in three states scheduled for next week and over a dozen scheduled in the next six weeks. If only two-thirds of these executions are completed, the US would hit another notable recent low in total executions for the year. But if all the executions scheduled for the next three months are crried out, 2015 could end up having more executions than 2014.

October 2, 2015 in Death Penalty Reforms | Permalink | Comments (8)

Thursday, October 1, 2015

Can and should the US Sentencing Commission try quickly to help everyone take stock of the SCRA 2015?

I am about to go off-line for the afternoon in order to (try to) read closely the full text of the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) which was introduced today by US Senate leadership.   The full bill, which runs 141 pages and is available at this link, has so many notable parts;  I am already struggling to figure out what is what and to assess the good, the bad and the ugly of what can be found in this massive legislative proposal.  Moreover, without some basic (and not-so-basic) data about how many past, present and future federal cases could be readily impacted by various provisions, it is hard to know which are the most consequential elements of the bill from just a basic reading to the SRCA text .

Ergo, the question in the title of this post, which jumped into my head as I started to think about what to think about SRCA 2015.  I am sure it would take a very long time for the US Sentencing Commission to do a comprehensive analysis of all that appears in the SRCA 2015.  But I suspect the USSC and its terrific research staff might be able to compose quickly one of its terrific "Quick Facts" publications to aid those of us trying to better figure out what needs still be to figured out about this massive bill.

Notably and fittingly, in the press event announcing the SRCA 2015, Senator Chuck Schumer astutely described the sentencing and prison reform problem as a kind of Rubik's Cube with lots of interlocking and moving parts.  I am sincerely hopeful the US Sentencing Commission will commit itself in the days ahead to helping all of us fans of federal sentencing reform better figure out whether and how the different-colored pieces of the proposed SRCA 2015 match up.

Today's prior related posts:

October 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

"Retributive Desert as Fair Play"

The title of this post is the title of this notable punishment theory paper authored by Peter Westen and available via SSRN. Here is the abstract:

The moral intuition that culpable wrongdoers deserve to suffer is so strong and pervasive that some advocates of retributivism, including Michael Moore, base their positions entirely upon it. Yet, given the enormity of state-imposed punishment, it is incumbent upon students of punishment to seek broader principles of justice by which such intuitions can be explained.

The moral principle that I believe most plausibly explains and justifies criminal desert is Herbert Morris’s theory of unfair advantage. I argue that commentators have failed to address Morris theory in its strongest possible form and failed to examine critically the arguments against it. Morris’s theory not only supplies normative content to intuitions of desert, it also reveals that ‘paying back a debt’ -- the original meaning of the Latin retribution -- is not a “faded and dead metaphor,” as Michael Moore asserts, but an apt description of what it is to deserve suffering for culpable wrongdoing.

October 1, 2015 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

SCOTUS grants review in 13 new cases, including capital and federal sentencing appeal issues

As reported here by Lyle Denniston at SCOTUSblog, the Justices of the US Supreme Court today officially added a baker's dozen of new cases to its merits docket via this order list.  One of the grants is a capital case from Pennsylvania that is already garnering media attention, and these excerpts from the SCOTUSblog posting suggests there is a lot of interesting new matters for criminal justice fans to consider:

The judicial disqualification case the Court will hear (Williams v. Pennsylvania) will give the Court a chance to clarify when the rights of an individual are violated when a member of a state supreme court joins in ruling on a case in which that judge has been accused of bias because of a former role in the case.

Four years ago, in its decision in Caperton v. A.T. Massey Coal Co., the Court ruled that it violates constitutional due process when a member of the West Virginia Supreme Court cast the deciding vote in a case in which the judge had accepted large campaign donations from the mining company involved in the case.

One of the issues that the Court agreed to consider in the new Pennsylvania case is whether that precedent on judicial qualification also applies when the challenged judge did not cast a deciding vote. The judge involved — then Pennsylvania’s chief justice, Ronald D. Castille (who has since retired) — joined in a unanimous ruling by the state supreme court that reinstated a death sentence for a Philadelphia man, Terrance Williams.

Williams, then eighteen years old, was convicted in 1986 of murder, robbery, and criminal conspiracy in the killing of Amos Norwood and was sentenced to death. Williams contended that Norwood was a sexual predator who had preyed on underage boys, including Williams at the age of thirteen.

Later, when Williams case went before the state supreme court, his lawyers sought to have Chief Justice Castille disqualified, arguing that he had as a Philadelphia prosecutor authorized the decision to seek a death sentence for Williams, voiced strong support for the death penalty when running for a seat on the state supreme court and cited Williams’s case as an example of his “tough on crime” record. The case before the state’s highest court involved a claim that prosecutors had withheld evidence that would have aided in Williams’s defense. The state court rejected that challenge. The chief justice denied the recusal motion without explanation, and refused Williams’s request to refer it to the full court.

The commonwealth government of Puerto Rico gained Court review Monday of its claim that, since Congress gave it self-governing powers in 1950, it has the power to pass its own laws as a sovereign government, like any state in the Union. Thus, it argued, its legislature has full authority to pass criminal laws. And, as is important in this case, it has the independent right to prosecute someone for a crime even if the federal government has already prosecuted that same crime.

That argument was rejected by Puerto Rico’s Supreme Court, which concluded that Puerto Rico and the federal government were part of the same sovereignty — that of the United States. Puerto Rico, it decided, gets its power to legislate from Congress. Because the two governments are not separate sovereigns, the court declared, it would violate the Constitution’s ban on double jeopardy for a person to be tried by both Puerto Rico and federal prosecutors.

The case (Puerto Rico v. Valle), although focused on the double jeopardy issue, will apparently required the Court to decide just what constitutional significance to assign to the 1950 law on which Puerto Rico based its claim of sovereign powers....

In the other nine cases that the Court accepted for review, the questions are summarized as follows:

Utah v. Strieff — if police learn about an outstanding arrest warrant during a street or traffic stop that turns out to have been illegal, does the Fourth Amendment bar the use of any evidence obtained as a result of a search at the time of the arrest....

Duncan v. Owens — does it violate federal habeas law for a judge during a criminal trial to state a position on the accused person’s motive, based on evidence not introduced at the trial.

Taylor v. United States — must the government in a case under the Hobbs Act prove that robbery of a drug dealer does actually affect interstate commerce.

Molina-Martinez v. United States — what effect should a federal appeals court give to a district court’s ruling applying the wrong Sentencing Guideline range to a convicted individual.

October 1, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?

As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting.  But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"  

I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page).  Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction: 

The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings.  That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.

WFG’s amicus brief argues against the Court’s jurisdiction in two steps.  First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings.  Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more.  Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument).  Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.

WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:

[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague.  We now do so and adopt the Teague standards for all cases on collateral review in our state courts.  In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts.  Taylor, 606 So. 2d at 1296–97.

WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear[] to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.

While this is surely one reading of Taylor, it is a narrow one.  The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.

Taylor supports this argument.  The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity.  See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”).  Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review.  Id. at 1297.  In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.

As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.”  Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case.  To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.

I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.

Prior posts in series:

UPDATE: A helpful reader reminded me it might be useful in this context to remind readers of this prior post which includes this link to a prior article by Steve Sanders on this jurisdictional topic.

October 1, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Lots and lots of good reads from The Atlantic, Reason, and Slate

Busy times on a number of fronts has prevented me from highlighting a number of recent articles from The Atlantic, Reason, and Slate on a range of topics that should be of interest to sentencing fans. In an effort to catch up, I will just here note headlines and provide links (and urge readers in the comments to idenitfy which pieces they think perhaps merit added attention).

Recently from The Atlantic:

 

Recently from Reason:

 

Recently from Slate:

October 1, 2015 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Bipartisan federal sentencing reform bill due to emerge from Senate today

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

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

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

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

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

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

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

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

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

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

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

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

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

"President Obama and the Power of Mercy"

The title of this post is the headline of this New York Times editorial. Here are excerpts:

The power to grant mercy to someone who is serving an unjustly long sentence is one of the most important constitutional powers a president has to counteract the frequent excesses of the federal criminal justice system.  Between 1885 and 1930, presidents issued more than 10,000 grants of clemency.  But in recent decades the practice has fallen into irrelevance.  Starting with President Ronald Reagan, pardons and sentence commutations have become little more than a lottery or a game of personal connections, often doled out in the waning days of an administration.

Until recently, President Obama was the least merciful president of modern times. In the past year, he has done more — his totals now stand at 89 sentence commutations and 64 pardons.  (A commutation shortens or ends a sentence being served, while a pardon erases the conviction and restores any rights lost as a result.)  This is a step in the right direction, but there are many thousands more in prison who are deserving of executive clemency....

The Office of the Pardon Attorney, a division in the Justice Department, has the job of sifting through tens of thousands of clemency petitions....  [But], the clemency process should be removed from the Justice Department entirely.

The idea has been proposed before, but it is gaining new and notable supporters, including Margaret Love, who served as pardon attorney under Presidents Bill Clinton and George H. W. Bush, and who until recently defended the department’s role.  In a new law review article, however, she says the department is “determinedly and irreconcilably hostile” to clemency.

It should be no surprise that pardon lawyers working in the Justice Department are loath to second-­guess the convictions and sentences obtained by the department’s prosecutors.  The solution, as Ms. Love and others argue, is to move the clemency process into the White House itself, and to give it enough money to operate effectively.  As many states have already discovered, a clemency commission — ideally representing a wide range of perspectives from the justice system — can handle more petitions with greater transparency and predictability than a pardon attorney with a very small staff.

October 1, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, September 30, 2015

Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender

As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender.  Here are the details:

A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?

That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.

Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.

“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.

The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.

“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient basis...to mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.

The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....

Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.

Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....

In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”

“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.

Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”

September 30, 2015 in Assessing Miller and its aftermath, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution

As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols."  here is the rest of the text of the press release:

The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures. 

“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin.  “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”
 
The new execution date will be Friday, November 6.
 
“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin. 

Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.

September 30, 2015 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"

Secretary of Education Arne Duncan today gave this notable speech at the National Press Club.  The lengthy speech covers a lot of ground, but it is especially focused on the "linkage between education, or a lack thereof, and incarceration" and calls upon government to reorient funding to prioritized education over criminalization. Here are excerpts from the speech, which merits a read in full:

I want to lay out an idea today that will strike some as improbable or impractical, but which I think is essential.  It's about setting a different direction as a society, a different priority — one that says we believe in great teaching early in our kids' lives, rather than courts, jails and prisons later....

The bet we're making now is clear.  In the last three decades, state and local correctional spending in this country has increased almost twice as fast as spending on elementary and secondary education.  Ask yourself, "What does that say about what we believe?"

Leaders at the state and local levels have the power to change that — to place a bet on getting it right with kids from the start, and on the power of great teaching in particular.

I'm not pretending for a second that schools can do this alone — that they can replace efforts to deal with poverty, hunger, homelessness, or other ills that affect our young people.  But the facts about the impact of great teaching are too powerful to ignore....

The linkage between education, or a lack thereof, and incarceration is powerful.  More than two-thirds of state prison inmates are high school dropouts.  And an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed.

Today, our schools suspend roughly three and a half million kids a year, and refer a quarter of a million children to the police each year.  And the patterns are even more troubling for children of color — particularly boys — and for students with disabilities.

We cannot lay our incarceration crisis at the door of our schools.  But we have to do our part to end the school to prison pipeline.  That's going to force us to have difficult conversations about race, which I'll get to in a moment.

But I want to start by talking about bold new steps our states and cities can take to get great teachers in front of our neediest kids.  It's hardly a secret that it's challenging to recruit and keep fantastic teachers in the schools where the needs are greatest.  The rewards of that work are extraordinary — but it's an incredibly hard job.

So here's an idea for how you put a new emphasis on schools rather than jails.  If our states and localities took just half the people convicted of nonviolent crimes and found paths for them other than incarceration, they would save upwards of $15 billion a year.

If they reinvested that money into paying the teachers who are working in our highest-need schools and communities — they could provide a 50 percent average salary increase to every single one of them.  Specifically, if you focused on the 20 percent of schools with the highest poverty rates in each state, that would give you 17,640 schools — and the money would go far enough to increase salaries by at least 50 percent.

I've long said great teachers deserve to be paid far more.  With a move like this, we'd not just make a bet on education over incarceration, we'd signal the beginning of a long-range effort to pay our nation's teachers what they are worth.  That sort of investment wouldn't just make teachers and struggling communities feel more valued.  It would have ripple effects on our economy and our civic life. ...

There are lots of ways to go about this, and ultimately, local leaders and educators will know what's best for their community.  But the bottom line is that we must do more to ensure that more strong teachers go to our toughest schools.

Right now, in far too many places, glaring and unconscionable funding gaps create all the wrong incentives.  To take just one example — and there are many — the Ferguson-Florissant school district in Missouri spends about $9,000 per student. Eleven miles away, in Clayton, funding is about double, at $18,000 per student. How is that a plan to give kids a fair start?...

Let's invest more in the adults who have dedicated their professional careers to helping young people reach their full potential.  And let's place a new emphasis on our young people as contributors to a stronger society, not inmates to pay for and warehouse.

I'm not naïve about doing all of this overnight.  And for those already in the system, we can't just walk away from them — we also have to invest in education, career training, treatment, and support programs that help young people who are already involved in the criminal justice system become contributing members of our society.  That's why we are starting the Second Chance Pell program, to give those who are incarcerated a better chance at going to college.

To be totally clear, I'll repeat that we are talking about savings that come from alternative paths that involve only nonviolent offenders.  This is not about being soft on dangerous criminals — this is about finding ways, consistent with wise criminal justice policies, to reapportion our resources so we prevent crime in the first place....

 I'm convinced that making a historic bet on getting it right from the start would pay massive returns for our families, our communities, our society and our nation's economy. According to a 2009 McKinsey report, the achievement gap between us and other top-performing nations is depriving the U.S. economy of more than $2 trillion in economic output every year.

A separate study found that a 10 percent increase in high school graduation rates would reduce murder and assault arrest rates by approximately 20 percent.  And a one percent increase in male graduation rates would save up to $1.4 billion in the social costs of incarceration.  So you don't have to be a liberal romantic to like the idea of investing up front in our kids.  A hard-nosed look at the bottom line will take you to the same place.

I recognize that what I've just laid before you is ambitious.  But, if we're serious about eliminating the "school to prison pipeline," a shift in funding is only part of what we need to do. In truth, there's a lot more we need to get right....

Taking the essential steps to expand what we know works in education should be a no-brainer.  But there's more to it than just budgets and policies.  Perhaps the hardest step of all is taking an unsparing look at our own attitudes and decisions, and the ways they are tied to race and class. In the wake of Ferguson, Baltimore and elsewhere, this has become a central discussion for many in America, and rightly so — if belatedly.  Those of us in education cannot afford to sit back.

Let's recognize, up front, that this is among the hardest conversations we can have in education.  People enter this field out of love for students and the genuine desire to see them excel and thrive.  Yet we also know that suspension, expulsion and expectations for learning track too closely with race and class.

As the author Ta-Nehisi Coates recently pointed out, our high rates of incarceration, our high numbers of high school dropouts, and our high rates of child poverty are not unrelated problems....

It's difficult work, challenging centuries of institutionalized racism and class inequality. But I firmly believe a hard look at ourselves is an essential part of becoming the nation we strive to be — one of liberty and opportunity, regardless of the circumstances of your birth.

September 30, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

Georgia finally completes execution of female murderer

As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.

The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.

In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.

Shortly thereafter, the board announced that it would not stop the execution.

The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.

"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....

Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."

September 30, 2015 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 29, 2015

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

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

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

Long-awaited bipartisan federal criminal justice reform bill to emerge from Senate this week

A helpful reader alerted me to this notable new NPR story headlined "Bipartisan Criminal-Justice Overhaul Proposal Expected As Soon As Thursday."  Here are the details: 

A bipartisan group of senators on the Judiciary Committee is preparing to unveil a criminal-justice overhaul proposal as early as Thursday, two sources familiar with the deal told NPR.  The plan follows months of behind-the-scenes work by the staffs of Sen. Charles Grassley, the Iowa Republican who chairs the committee, and several other lawmakers representing both political parties.

Senior members of the Obama administration, including the second-in-command at the Justice Department, also have been nudging senators on the sentencing plan, viewing the proposal as one of the capstones of a legacy on criminal-justice issues for this president. Barack Obama famously became the first sitting president to visit a prison in July.

An unusual left-right coalition formed earlier this year to drive action in Congress and in state houses across the country. The Coalition for Public Safety, which includes Koch Industries, the American Civil Liberties Union and others, is said to support the Senate plan, as well, a third source said.

The proposal will not go as far as some reform advocates may like, the sources say. For instance, the plan would create some tough new mandatory minimum sentences, after pressing from Grassley. It stitches together proposals that would allow inmates to earn credits to leave prison early if they complete educational and treatment programs and pose a relatively low risk to public safety along with language that would give judges some more discretion when sentencing non-violent offenders....

Despite the optimism among advocates and lawmakers, it's unclear whether the full Senate has the time to act before the presidential election intensifies. In the House, meanwhile, Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., are pressing their own legislation, known as the SAFE Justice Act. The two leaders of the House Judiciary Committee, Chairman Bob Goodlatte, R-Va., and John Conyers, D-Mich., are writing their own bills, staff members said.

I am giddy with anticipation to see the specifics of this bill and I am cautiously hopeful that all the time spent working through the details will greatly increase the likelihood that a bill actually makes it through the Senate and perhaps all the way to the desk of Prez Obama.  As I have long said in this space and others, hopeful visions of "the best" possible reform should not stand in the way of any "good" reform that has a real chance of becoming law.  And since just about any reform emerging from a bipartisan deal is likely to have good elements, I am extra hopeful that this news means we getting ever closer to an improvement of existing federal sentencing law and policy.

September 29, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"

The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA.  (This silly hashtag is explained in this prior post.)  Here is an excerpt:

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.  The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor.  The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed.  The jury’s recommendation need not be unanimous.  But Florida law also requires the judge to independently weigh aggravating and mitigating factors.  The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.

September 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Heroin, Murder, and the New Front in the War on Drugs"

DownloadThe title of this post is the headline of this lengthy and effective new Vice article.  Here are excerpts:

It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....

But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....

So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....

So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.

The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.

The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...

In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.

Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."

Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...

State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.

In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....

State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.

Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.

In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....

In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."

Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.

September 29, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, September 28, 2015

A busy (and diverse) week for execution plans and capital concerns

Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution.  Here are the basics: 

Tuesday, September 29Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.)  The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.

Wednesday, September 30Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross.  He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss.  (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.)  The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.

Thursday, Oct 1Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.

For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.

September 28, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?

The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices.  Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus."  I recommend reading Rory's post in full, and here is just a taste (with links from original):

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

 Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.   All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7...

2. Kansas v. Carr and Carr (Question 2) — October 7...

3. Montgomery v. Louisiana  — October 13...

4. Hurst v. Florida  — October 13...

5. Foster v. Chatman (Warden)  — November 2... 

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.

September 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

FBI releases national crime data reporting 2014 continued historic crime declines

If there was a close causal inverse relationship between crime and nationwide sentencing and prison reforms, one might have reasonably expected crime rates to have started moving up in recent years.  After all, at the federal level there have been dramatic reforms over the last decade ranging from (1) the Supreme Court's Booker ruling making the guidelines advisory and various other rulings restricting in the reach of other mandatory sentencing provisions, (2) the US Sentencing Commission repeatedly reducing the severity of the sentencing guidelines for crack offenses and other drugs and other offenses, and (3) Congress enacting the Fair Sentencing Act.  During the same period, many states north and south, east and west (including California and Texas, the two states with the largest prison populations), have reformed sentencing laws and prison policies in various ways.  

But, as this new press release from the FBI reports, the "estimated number of violent crimes in the nation decreased 0.2 percent in 2014 when compared with 2013 data, according to FBI figures released today. Property crimes decreased by 4.3 percent, marking the 12th straight year the collective estimates for these offenses declined."  Here is more of the good crime news via the FBI:

The 2014 statistics show the estimated rate of violent crime was 365.5 offenses per 100,000 inhabitants, and the property crime rate was 2,596.1 offenses per 100,000 inhabitants. The violent crime rate declined 1.0 percent compared to the 2013 rate, and the property crime rate declined 5.0 percent. These and additional data are presented in the 2014 edition of the FBI’s annual report Crime in the United States. This publication, which is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program, also includes limited federal crime reporting and human trafficking data.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and non-negligent manslaughter, rape, robbery, and aggravated assault as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.... The program also collects arrest data for the offenses listed above plus 20 offenses that include all other crimes except traffic violations....

A total of 18,498 city, county, state, university and college, tribal, and federal agencies participated in the UCR Program in 2014. A high-level summary of the statistics reported by these agencies, which are included in Crime in the United States, 2014, follows:

  • In 2014, there were an estimated 1,165,383 violent crimes. Murder and non-negligent manslaughter decreased 0.5 percent and robbery decreased 5.6 percent when compared with estimates from 2013. Rape (legacy definition) and aggravated assault, however, increased 2.4 percent and 2.0 percent, respectively.

  • Nationwide, there were an estimated 8,277,829 property crimes. The estimated numbers of each of the property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 10.5 percent, larceny-thefts declined 2.7 percent, and motor vehicle thefts were down 1.5 percent.

September 28, 2015 in National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

092715-wpvi-pope-bishop-prison-3-IMGThis local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

September 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1)

"The Real Roots of ’70s Drug Laws"

The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner.  Here are excerpts:

The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice.  But many more still die at the hands of black neighbors instead of the police.  Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.

That’s because some consider talk of black­-on-­black violence a distraction.  This is a natural outgrowth of the view that the over­-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white­-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement.  But this is too convenient a narrative.  It erases the crucial role that African-­Americans themselves played in the development of the current criminal justice system.

Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities.  It is, in part, the unintended consequence of African-­Americans’ own hard­fought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.

The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives.  During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods.  After the Harlem riots of 1964 (which erupted following the shooting of a 15-­year-­old black male by a white cop), polls showed that many African­-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....

In 1969, the Manhattan branch of the N.A.A.C.P. issued an anti­crime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.

Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three­-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people.  Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...

Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change.  But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects.  Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half­-century of social and economic decline.  But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.

But long­term strategies can’t provide immediate relief from the daily horrors of urban crime.  In the short run, we need the police.  We need aggressive law enforcement methods that do not harass or brutalize the innocent.  Ultimately, though, we can’t eliminate the propensity to over­police and over­imprison unless we curb the disorder and chaos that threaten and destroy urban black lives.  As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 27, 2015

Could crime be significantly reduce if marijuana tax revenues were all devoted to public safety?

The question in the title of this post is prompted in part by this new local article out of Colorado headlined "Aurora's Smoking New Budget: City puts pot, public safety resources in play for funding 2016." Here are snippets:

For 2016, the City of Aurora will be adding a new line item to its budget: marijuana. City officials project Aurora will make $2.7 million in 2015 based on 18 retail stores and 5 cultivation facilities slated to be up and running by the end of this year....

City officials project that all 24 stores allowed under Aurora’s recreational marijuana ordinance will be open by next year. City officials said they expect to make $5.4 million in 2016 based on 24 stores and 10 cultivation operations being open....

The 2016 proposed budget for the general fund is $305.7 million, up 5 percent from the 2015 budget of $291 million. The 2016 proposed budget calls for big increases in Aurora’s public safety spending, in part by adding eight police officers for administrative duties and to support field operations. It also calls for seven more fire medics.

I remain hopeful that the repeal of marijuana prohibition in the 21st century, like the repeal of alcohol prohibition in the 20th century, will directly improve public safety by reducing the crimes and violence often associated with black markets in illegal comnmodities. But this local article highlights how marijuana reform, by generating new tax revenues for various jurisdictions, might provide an additional boost to public safety through new resources that can be devoted to proven strategies to reduce criminal activities.

For those interested in marijuana reform topics beyond taxes and public safety, here are some recent posts of note from Marijuana Law, Policy and Reform:

September 27, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE.  A partial preview is available here via YouTube, where this summary of the show also apprears: 

VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].

In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.

The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.

It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.

"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.

In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.

America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.

"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."

The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Saturday, September 26, 2015

"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"

The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:

In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.

This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials.  In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves.  The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.

In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility.  In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.

“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments.  “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”

Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.

States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT.  While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring."  One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.

Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...

As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth.  SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.

Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking?  Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...

The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”

In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it.  For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.”  However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.

“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...

Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”

September 26, 2015 in Criminal Sentences Alternatives, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (5)

Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs

The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states.   This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:

The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.

Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.

The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”

On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”

“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...

The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”

States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.

September 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)