Thursday, August 24, 2017

"Criminal Injustice: Alec Karakatsanis puts 'human caging' and 'wealth-based detention' in America on trial"

The title of this post is the headline of this extended profile in the latest issue of Harvard Magazine. Here is an excerpt:

Alex Karakatsanis [has been] honored for his work at both Civil Rights Corps (CRC), a legal nonprofit that he founded in 2016, and Equal Justice Under Law (EJUL), a legal nonprofit that he co-founded with law-school friend Phil Telfeyan J.D. ’08 in early 2014. (He had left EJUL the month before to found CRC; Telfeyan still runs EJUL.) With his small band of colleagues — CRC just hired its tenth staff member — Karakatsanis, now 33, has swashbuckled around the country, partnering with local legal nonprofits and community groups to file lawsuits challenging egregious forms of such “human caging” across the balkanized constellation of local authorities in which the vast majority of American criminal procedure plays out each day.

Though he had clerked in Alabama, served as a federal public defender there, and practiced as a lawyer with the District of Columbia’s storied Public Defender Service (PDS), co-founding EJUL was Karakatsanis’s first foray into tackling what he calls “the American criminal system” more broadly.  (He’s observed that “if you say things like ‘the criminal justice system,’ people might get the sense that you’re talking about a system that does justice.”)

For a year and a half after he and Telfeyan founded EJUL in early 2014 with their seed grant, the two of them worked out of their Washington, D.C., apartments. Karakatsanis often used his bed and a small standing desk next to it as his workspace. Juliana Ratner, J.D. ’17, who first met Karakatsanis when they worked together at PDS, recalls that she “used to joke to him: ‘Do these cities that you’re suing know that it’s one man in a bed?’ ”

Their challenges to date have focused on the jailing of poor people for failing to pay municipal fines and fees, and the jailing of poor criminal defendants who cannot afford to pay the bail amounts that would allow them to be released from jail before trial. In challenging these two forms of what CRC and other groups have termed “wealth-based detention,” Karakatsanis and his colleagues have launched two frontal assaults at a broader system of criminal punishment that keeps 2.3 million people locked away from the rest of society.  It may sound amazing to attack something so Goliath-like with the organizational equivalent of sticks and stones. But so far, at least, they are winning.

August 24, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, August 23, 2017

Federal district judge finds due process problems with Indiana's forfeiture procedures

As reported in this local article, a "federal judge has issued an order that partially halts the police seizure of vehicles in Indiana drug cases and other related crimes, calling the seizure of vehicles before an official forfeiture action unconstitutional." Here are the basics and the context of the ruling:

U.S. District Chief Judge Jane Magnus-Stinson ruled that Indiana's forfeiture law violates the due process clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. "The Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional," Stinson ruled

The order comes as the Indiana legislature reexamines the state's forfeiture laws in an interim study committee. Under Indiana law, law enforcement can hold a vehicle for up to six months. If the state decides to file a forfeiture claim against the vehicle within the first 180 days, the vehicle is held indefinitely until the case is concluded, which can often be several additional months, according to court documents. ​

The full 35-page opinion in this matter is available at this link, and it gets started this way:

This matter involves a challenge to Indiana’s civil forfeiture statute, specifically as it applies to the seizure and pre-forfeiture retention of vehicles.  Plaintiff Leroy Washington, on behalf of himself and a putative class of plaintiffs, contends that Indiana’s statute violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution.  Mr. Washington argues that the statute allows law enforcement officers to seize and hold vehicles based on an officer’s probable cause determination for up to six months without judicial oversight and without allowing individuals the opportunity to challenge that seizure and deprivation -- in other words without a post-seizure, pre-forfeiture hearing. In his Motion for Summary Judgment, Mr. Washington requests a declaratory judgment that the statute is unconstitutional, and a permanent injunction enjoining Defendants from enforcing the statute.  For the reasons that follow, the Court concludes that Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.

August 23, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (2)

"Can a General Conquer the Federal Prison System?"

The question in the title of this post is the headline of this new extended Marshall Project piece looking at the challenges facing the newly appointed head of the federal Bureau of Prisons. Here is how it gets started:

The federal Bureau of Prisons faces a sea of troubles: Escalating medical costs, a prison population with little access to job training programs or computers, an institutional culture averse to change. In steps Mark S. Inch, the retired two-star general selected by Attorney General Jeff Sessions last month to run the Bureau of Prisons.

Inch retired from the Army in May after more than three decades in the military, mostly as a police officer. While some prison advocates are wary of a leader from an organization disgraced by the abuses at Abu Ghraib, others say a military man may have the courage and discipline to move a stodgy federal prison system toward reforms that have been stalled for years.

“He would provide strong leadership, demand accountability, transparency, and I believe he would be a general who has the ability to think outside the box,” said federal prison consultant Jack Donson, who does not know Inch but worked for the Bureau of Prisons for more than two decades.

In a statement after appointing Inch, Sessions called the retired general “uniquely qualified” because of his policing background and his time overseeing Army Corrections over the past two years.  He replaces Thomas Kane, a 40-year veteran of the federal prison system who had been acting director since early 2016.

The Bureau of Prisons houses more than 187,000 inmates and employs more than 39,000 workers spread out across 122 correctional facilities, six regional offices, a headquarters, two training centers, and 25 residential reentry management offices.  The BOP also has contracts with 11 private prisons.

Outside the military, not much is known about Inch, especially among those who have worked in the federal prison system, prisoner advocates and corrections officials.  Will Inch be an ally for better prisoner education? Will he limit the amount of time prisoners are held in isolation?  Will he rely on controversial for-profit prisons to house new inmates?Inch hasn’t said.

Prisoner advocacy groups have asked Justice officials if any hearings will be held to examine Inch’s background and priorities.  They were told no.

August 23, 2017 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Tuesday, August 22, 2017

Missouri Gov halts scheduled execution and appoints Board of Inquiry to investigate innocence claim

As reported in this local article, today just "before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Gov. Eric Greitens issued a stay of execution and appointed a board to look into the case." Here is why:

“A sentence of death is the ultimate, permanent punishment,” Greitens said in a statement Tuesday afternoon. “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt. In light of new information, I am appointing a Board of Inquiry in this case.”

Williams’ attorneys have been pleading for a stay, arguing that Missouri was on the verge of executing the wrong person. Williams, 48, was sentenced to death in 2001 for killing Felicia Gayle, who had been a reporter with the St. Louis Post-Dispatch. Gayle was stabbed 43 times with a butcher knife in her home. Williams was scheduled to be executed in 2015, but the Missouri Supreme Court stayed his lethal injection, allowing him time to obtain new DNA testing.

DNA testing of the murder weapon, conducted in 2016 and using technology that was not available at the time of the killing, shows Williams is not a match for the male DNA found on the murder weapon.

The Missouri Supreme Court last week turned down his attorneys’ attempt to have the execution stopped. The court did not provide a reason....

Greitens said he would appoint a five-member board that will include retired judges and have the power to subpoena evidence and compel witnesses to testify. The board will look into the case and make a recommendation to the governor as to whether Williams should be executed or have his death sentence commuted....

A spokeswoman for Attorney General Josh Hawley told The Washington Post this week that based on “non-DNA evidence in this case our office is confident in Marcellus Williams’ guilt and plans to move forward.” Among the other evidence cited by Hawley’s office is testimony by Williams’ former cellmate and an ex-girlfriend implicating him in the murder. Some of the victim’s belongings were found in a car Williams drove the day she was killed.

Opponents of the death penalty say Williams’ case should help fuel the push to end the practice in Missouri. “Marcellus Williams’ case is a classic example of the inherent injustice of the death penalty system,” said Zeke Johnson, senior director of programs at Amnesty International USA, “and why it should be altogether abolished.”

Williams was set to face lethal injection at 6 p.m. Tuesday if not for the governor’s order 

Gov. Greitens' full two-page statement is available at this link.

August 22, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Considering clemency echoes of a possible Arpaio pardon as Prez Trump's first

This new Daily Beast piece, headlined "Donald Trump May Circumvent the Usual Process to Pardon Sheriff Joe Arpaio," provides some notable quotes from notable federal clemency excerpts in reaction to Prez Trump's indication that he is considering a pardon for a high-profile law enforcement official. Here are excerpts:

President Donald Trump has learned about his power to issue pardons.  And in the last week, White House aides have suggested that he use his first one on a controversial choice: Sheriff Joe Arpaio, the schismatic Arizona lawman convicted of contempt of court.

In recent days, speculation has mounted that Trump will follow through on this suggestion at a campaign rally in Phoenix on Tuesday.  Should he do so, it will be a unique moment in modern presidential politics.  Trump will have given the first pardon of his presidency to someone for what appears to be purely political reasons and he will have done so without going through the normal review process.

The possibility has left some clemency advocates feeling a little queasy. “There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting,” said P.S. Ruckman, political science professor at Northern Illinois University. “They’re sick to their stomach right now reading about Arpaio getting a potential pardon, that’s breaking their heart.”

Like George W. Bush and Barack Obama before him, Trump has proven stingy with the pardon power granted to the president.  And that’s probably a generous way to put it.  Two hundred days into his presidency, he has yet to pardon anyone.  This isn’t unprecedented. It took Obama more than 600 days to issue a pardon.  He nearly broke the record for fewest pardons, though he granted more clemencies than any other president by shortening the sentences of more than a thousand people....

Ruckman said that most American presidents started pardoning people in their first month in office, and kept pardoning at a regular clip through their administrations.  The drop-off in pardons is a relatively new change.  And while high-profile grants of clemency to political allies get the most press — think Bush’s commutation of Scooter Libby’s sentence or Bill Clinton’s pardon of Democratic mega-donor Marc Rich — the vast majority of people who get pardoned never become household names....

Were Trump to give his first pardon to Arpaio, who endorsed him during the Republican presidential primary, Ruckman argues that it would undercut the populist message from the campaign.  “It would give people the sense that only famous people, cause célèbres, and connected people are going to get pardons from Trump,” Ruckman said.

Sam Morison, an attorney who worked in the Justice Department’s pardon office for more than a decade, predicted Trump will pardon Arpaio when he goes to Arizona, though he added that it would send a terrible message. “He hasn’t even been sentenced yet, he’s just been convicted,” Morison said.  “And he’s not contrite, he doesn’t accept responsibility — quite the opposite. So in that sense, it’s very unusual.  And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Prior related post:

UPDATE: This local report on a speech Tuesday night by Prez Trump provides the latest news on this front via its headline: "Trump didn't pardon Joe Arpaio in Phoenix — but hints that he will."

August 22, 2017 in Celebrity sentencings, Clemency and Pardons, Who Sentences? | Permalink | Comments (3)

Looking at US prison history while charting "How to End Mass Incarceration"

The quoted title of this post is the headline of this lengthy Jacobin commentary authored by Roger Lancaster, which starts with an extended review of prison history in the United States.  I recommend the full piece, and here is a how it gets started:

The United States has not always been the world’s leading jailer, the only affluent democracy to make “incapacitation” its criminal justice system’s goal.  Once upon a time, it fashioned itself as the very model of what Michel Foucault called “the disciplinary society.”  That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals.  Today, it is a carceral state, plain and simple.  It posts the highest incarceration rate in the world — as well as the highest violent crime rate among high-income countries.

Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration.  Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism.  But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?

While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration.  Only then will we be able to see a clear path out of the current impasse.

August 22, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Johnson & Johnson the latest drug company to balk about its drugs being used in lethal injection protocol

This notable new Wall Street Journal article reports on a notable new company expressing concern about an execution protocol. The piece is headlined "Johnson & Johnson Wades Into Death Penalty Debate For First Time: J&J’s Janssen Pharmaceuticals protests use of its drug in a lethal injection."  Here is how the piece gets started:

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in a coming execution, marking the first time the world’s largest pharmaceutical manufacturer has waded into the death-penalty debate.

Earlier this year, Florida amended its lethal-injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.  Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson’s Janssen Pharmaceuticals NV created etomidate in the 1960s.  The company never distributed the drug in North America and divested the rest of the business in 2016.  But the company protested on Monday Florida’s plan to use etomidate to render death-row inmates unconscious before injecting them with a paralytic agent and a third drug to stop their hearts.  “We do not support the use of our medicines for indications that have not been approved by regulatory authorities,” a Janssen spokesman said in an email.  “We do not condone the use of our medicines in lethal injections for capital punishment.”

No Johnson & Johnson drugs have been used so far in executions, according to Reprieve, an international-rights group that opposes the death penalty.  At least eight companies make etomidate. Florida, like many states, keeps the identity of its suppliers secret.

August 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

"In Defense of Substantial Sentencing Discretion"

The title of this post is the title of this new article posted on SSRN authored by Antje du Bois-Pedain. Here is the abstract:

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision.  The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

August 22, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, August 21, 2017

NACDL and FAMM launch "State Clemency Project"

Site_logosThis new NACDL press release reports on an exciting new project that provides another example of new and important state-level criminal justice and sentencing work afoot these days.  Here are the details:

The National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ), announce today a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project, a program designed to help to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted.  Outreach has already begun to several governors' offices across the nation.  And Governor Cuomo of New York has just announced a partnership with the NACDL/FAMM State Clemency Project to develop the necessary processes and procedures to enable volunteer lawyers through the project to help prisoners seeking clemency pursuant to the Governor's initiative. The Project will provide logistical support for the governor's initiative, among other ways, by recruiting and training volunteer lawyers to help prisoners apply for clemency.

"We are committed to provide training and resource support to volunteer lawyers to facilitate a process through which applicants can have access to counsel who can expeditiously submit a petition that makes the case for a second chance," said NACDL Executive Director Norman L. Reimer.  "We want the executive authority to see clearly that many offenders have learned from past mistakes and are ready to safely and productively return home."

"Those individuals who have worked hard to rehabilitate themselves and take responsibility for their mistakes deserve a chance to get out of the penalty box.  Their families, communities, and state will be better off with their release," said FAMM President Kevin Ring.  "We're excited to work with NACDL and Governor Cuomo on this important initiative and we look forward to partnering in other states."

"NACDL is proud to build on its experience as a Clemency Project 2014 founding partner in order to make this state-level clemency project a success," said NACDL President Rick Jones. "As a New York City defense attorney, I am especially pleased that Governor Cuomo is taking the lead in this effort.  Our goal is to provide many hundreds of applicants with qualified counsel who will submit first-rate petitions.  And our hope is that other Governors will launch their own programs, and we pledge to support them. It is long past time to recognize that people can change and that redemption is possible. This program recognizes that fundamental truth."

This project brings NACDL's and FAMM's collective experience as partners of the federal-level Clemency Project 2014 (CP 2014), to state-level clemency efforts. CP 2014, a partnership that also included the American Bar Association, American Civil Liberties Union and the Federal Public and Community Defenders, provided pro bono legal assistance to prisoners seeking to have their sentences commuted under specific criteria set by the White House.

Similarly the NACDL/FAMM State Clemency Project will focus on training lawyers to identify eligible prisoners based on criteria provided participating state executives.  Project staff will work with state agencies to devise the most efficient way to connect applicants to volunteers, provide essential applicant information, and submit well-crafted petitions.  The Project will have a state-based focus that will respond to the criteria for articulated by each governor or state clemency authority, and will rely heavily upon local attorneys, law firms and law clinics.

This link provides the press release from Gov. Cuomo's offices stating "Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program."  And more information about the NACDL/FAMM State Clemency Project with instructions on how to sign up to volunteer can be found here at the project website.  

Kudos to NACDL and FAMM and others involved in this project for building on the wisdom and successes achieved through the federal Clemency Project 2014.  Despite facing an array of challenges, CP14 ended up playing a huge role in helping secure clemency relief for many hundreds of federal prisons.  It would be amazing if this new project can achieve similar successes in a number of states in the months and years ahead.  (For those interested in a review of some recent federal clemency developments, the most recent issue of the Federal Sentencing Reporter has a group of articles curated by Professor Mark Osler looking broadly at Prez Obama's overall clemency initiative.) 

August 21, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Reviewing recent chapters of the long-running US "war on drugs"

The Guardian has this lengthy new article on federal drug crime policies headlined "How Jeff Sessions and Donald Trump have restarted the war on drugs."  I find the headline frustrating because the federal government never really ended the "war on drugs" so it is misguided to suggest something that never stopped has been restarted.  That lingo notwithstanding, the extended piece provides a useful primer on recent drug war developments during the Obama and Trump era, and here are excerpts:

Barack Obama’s attorney general, Eric Holder, [in 2013] was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.  For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.

Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans....

In May [2017], Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.... What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America.  Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.

The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana.  Into this evolving international and national context has stepped Sessions, with a very different approach.  The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage....

For decades, reciting law and order slogans has been the path of least resistance for politicians -- and the policymakers who sign such harsh legislation have not been held responsible for its consequences. “I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”

In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.  Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”... “

You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric. “Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”

Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.  Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.

Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.  “The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”

“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”...  Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders. “If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.

August 21, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, August 20, 2017

Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits

I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18.  The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case.  The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response.  Here are snippets:

For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span.  Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual....  [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....

[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old.  Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age.  Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.

It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit.  But it is totally within Defendant’s own power to shorten the sentence imposed.  Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75.  It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.

August 20, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (25)

A late-summer review of some marijuana reform news and notes

In this post about a month ago, I set out a midsummer review of posts from Marijuana Law, Policy & Reform.  A month later, I figure it is a good time to provide a late-summer review via this abridged set of links to some MLP&R postings: 

August 20, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2)

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14)

"Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric and Sandeep Gopalan. Here is the abstract:

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders.  Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.”  The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders.  A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light.  While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

August 20, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 18, 2017

Califorina judge precludes death penalty for mass murderer as sanction for government misconduct

A helpful reader made sure I did not miss the notable state trial ruling reported in this new HuffPost piece.  As the piece reports, "Scott Dekraai, a 47-year-old man who admitted to killing eight people at a beauty salon in the worst mass shooting in Orange County, California, history, will not face execution for his crimes because of law enforcement misconduct linked to a jail informant program, a judge ruled Friday."  Here is more:

In a rare move, Superior Court Judge Thomas Goethals excluded the death penalty as a punishment option.  The ruling comes after the judge held weeks of hearings centered on whether the Orange County Sheriff’s Department could be trusted to turn over all records in the case.

It’s now expected that next month Goethals will sentence Dekraai to eight consecutive life terms in prison without the possibility of parole ― unless the California Attorney General’s office files a challenge to the ruling with the 4th District Court of Appeal.  “This is not a punitive sanction,” Goethals said in court Friday. “Rather it is a remedial sanction necessitated by the ongoing prosecutorial misconduct.”

Deputy Attorney General Michael Murphy ― the prosecutor who took over the Dekraai case after Goethals recused the Orange County District Attorney’s office due to misconduct ― had argued that the judge should keep the death penalty on the table.  Murphy said that Goethals had already doled out the appropriate sanctions in removing the district attorney’s office from the case and that excluding the death penalty would amount to an additional, unnecessary sanction.  Ultimately, Goethals disagreed. Reading from his ruling, the judge said that compliance by prosecutors and other law enforcement officers with his lawful court orders to turn over evidence in the Dekraai case “remains an elusive goal” and that ignoring those violations would be “unconscionable.”...

The judge’s ruling is extraordinary in the case of a mass murderer.  Dekraai almost immediately confessed to police about his role in the 2011 killing. He formally pleaded guilty to the crimes in 2014.  It appeared Dekraai would swiftly be dispatched to San Quentin’s death row.  But the case against him has been marred by allegations of egregious government malfeasance. His sentencing has remained in limbo amid ongoing allegations that county prosecutors and sheriff’s deputies improperly used a jailhouse informant in his case and then hid key evidence about that for years....

Just days after the 2011 shooting, county law enforcement moved Dekraai, then held in a local jail, next to a prolific jailhouse informant, Fernando Perez. Perez questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more conversations between the pair.

While it is generally legal for law enforcement authorities to use informants to help bolster cases, Dekraai’s lawyer, Assistant Public Defender Scott Sanders, has argued that in the particular circumstances, the move was a violation of his client’s constitutional rights.  That’s because it is illegal for government agents, including informants, to question or coerce statements out of a defendant who has been formally charged with crimes and is already represented by a lawyer, as Dekraai was.  Prosecutors contended there was no intentional violation because they did not instruct Perez to question Dekraai.

While the contents of the conversations between Dekraai and Perez remain sealed, court records have shown that the informant did probe Dekraai about his crimes.  As Sanders requested more information about the contacts between the two men, he discovered that Perez had also been used as an informant against another one of his clients, Daniel Wozniak.  Wozniak was sentenced to death last year for the killing of two of his friends in an attempt to fund his wedding.

Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. Sanders pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies.... Additional evidence of the informant program came to light over the course of four years and three evidentiary hearings. Sanders’ efforts would ultimately reveal a disturbing trove of long-hidden records: a 25-year-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants, which was deleted in 2013 just days before Judge Goethals issued an order requiring its disclosure; and internal sheriff’s department memos, including one boasting of “hundreds of informants.”...

Nonetheless, the sheriff’s department continues to deny a jail informant program exists.  In recent hearings, Sheriff Sandra Hutchens and members of her command and management staff suggested that if there was any informant-related misconduct in the jails by deputies, it was the work of just a handful of rogue officers operating independently of their orders.  Three deputies refused to testify at the hearings, invoking their Fifth Amendment right to silence.  Leaders of the sheriff’s department have also said they’ve made changes to how deputies handle inmates in the jail. The district attorney’s office has maintained that any misconduct by county prosecutors was unintentional and that the scandal has been overblown....

 The 4th District Court of Appeal found last year that the cheating by prosecutors and sheriff’s officials in the county was very real and that the “magnitude of the systemic problems cannot be overlooked.”  Afterward, the U.S. Department of Justice announced an investigation into the official use of jail informants in Orange County.

The scandal had already led to the unraveling of more than a dozen murder, attempted murder and felony assault cases in the county and threatens to upend countless more.  But the ruling in Dekraai’s case on Friday is arguably the most crushing defeat that the beleaguered district attorney’s office has faced since the scandal broke.

UPDATE: A copy of the ruling referenced above is available at this link.

August 18, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences

As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:

Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.

Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.

The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.

Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.

Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....

The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.

It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.

August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections | Permalink | Comments (3)

Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor

This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars: 

A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.

Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....

Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.  But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”

“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned.  Another measure appropriated $7 million that can be used to pay for drug treatment.

Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling.  “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.

Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.

August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, August 16, 2017

US Sentencing Commission to hold public meeting to finalize policy priorities and perhaps vote on guideline amendments

As indicated here, the US Sentencing Commission is holding a public meeting tomorrow.  Interestingly, the listed agenda for the meeting includes not only the usual "Vote on Final Policy Priorities for 2017–2018," but also a seemingly unusual "Possible Vote to Publish Proposed Amendments."

Every year around this time, the USSC finalizes its policy priorities after releasing tentative priorities and receiving comments.  For this year, here are the tentative priorities and here is the USSC's collection of some public comments it received.  On the main USSC page, the Commission states that it "received a record number of public comment submissions pertaining to proposed priorities for the 2017-2018 amendment year."  I am inclined to believe that the switch in Prez Administrations, some turn-over in USSC membership, and ever-growing concerns about the federal criminal justice system accounts for large number of comments this time around.

While finalizing of priorities are standard USSC activity this time of year, publishing of proposed amendments are not standard in August absent a need to respond to some pressing matter like a a consequential Supreme Court decision.  (In the usual course, guideline amendments get proposed in January and finalized in April.)  I suppose the USSC might think it worthwhile to propose amendments in response to recent SCOTUS federal sentencing decisions like Beckles and Dean, but I am not sure these rulings really demand immediate USSC amendment action.  Of course, as reported here, the USSC decided earlier in 2017 not to move forward with formal amendments for the 2017 amendment season because it lacked a quorum for a number of months.  With the USSC now having had a quorum in place for a number of months, perhaps it feels eager and able to move forward on some of the ambitious proposed amendments it released back in December 2016.

Happily, hard-core federal sentencing fans do not need to speculate about these matters for too long:  the USSC's meeting starts Thursday morning at 11am, and it can be live-streamed here.

August 16, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

DC sniper Lee Malvo loses one bid for Miller resentencing in Maryland state courts

As reported in this Washington Post piece, "Lee Boyd Malvo’s six life sentences, for the six Montgomery County, Md., slayings he committed as a 17-year-old in 2002, were allowed to stand Wednesday after a Montgomery judge found that Malvo was not given mandatory life terms." Here is more about this latest ruling in a high-profile case:

Malvo, now 32, could still have the sentences overturned by a federal court in Maryland, which is also considering his appeal. In Virginia, life sentences for his jury conviction in one murder case and his guilty pleas to two other murders were overturned in May by a federal judge because of the Supreme Court’s ruling. Virginia is appealing the order that Malvo must be resentenced in those three cases.

Malvo and John Allen Muhammad began a cross-country shooting rampage in Washington state in February 2002 and concluded with a series of 13 shootings, 10 of them fatal, in the D.C. area in October of that year. Malvo was tried first for a fatal shooting in Falls Church, Va., and a jury in Chesapeake, Va., convicted him but chose a life sentence without parole rather than a death sentence. Muhammad was tried for a slaying in Manassas, Va., and a jury in Virginia Beach convicted him and sentenced him to death. Malvo then pleaded guilty to two more slayings near Fredericksburg, Va., and received two more life sentences.

Having already been convicted of three slayings in Virginia, Malvo in 2006 testified against Muhammad in his trial in Montgomery County and then pleaded guilty to six counts of first-degree murder. Montgomery Circuit Court Judge James L. Ryan then imposed six more consecutive life sentences on Malvo....

Judge Ryan has since retired. But Judge Robert A. Greenberg issued a 20-page ruling Tuesday, released publicly on Wednesday, that concluded that “Judge Ryan is presumed to have known the law,” and that Malvo was not facing mandatory life-without-parole sentences when he was sentenced. “Clearly, Maryland employs a discretionary sentencing scheme,” Greenberg wrote, noting that Ryan had a range of options from a suspended sentence to life without parole. “Judge Ryan would have been well aware that a juvenile (albeit one four months from majority) ought to be beyond rehabilitation before life-without-parole could be imposed … the court expressly considered Defendant’s youth in sentencing him. ”

But even if Malvo’s sentences were mandatory, Greenberg ruled, “Judge Ryan affirmatively considered all the relevant factors at play,” to include extensive biographical and psychological reports on Malvo, “and the plain import of his words at the time of sentencing was that Defendant is ‘irreparably corrupted.’ ”

Ryan’s ruling does not affect Malvo’s appeal of his sentences in the federal court in Maryland or his Virginia cases.

August 16, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Let Prisoners Learn While They Serve"

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

Criminal justice officials across the country are struggling to break the recidivism cycle in which prisoners are released only to land right back behind bars.  These prisoners are among the most poorly educated people in the country, and that fact holds the key to a solution.  Decades of research has shown that inmates who participate in prison education programs — even if they fail to earn degrees — are far more likely to stay out of prison once they are freed.

That prison education programs are highly cost effective is confirmed by a 2013 RAND Corporation study that covered 30 years of prison education research.  Among other things, the study found that every dollar spent on prison education translated into savings of $4 to $5 on imprisonment costs down the line.  Other studies suggest that prisons with education programs have fewer violent incidents, making it easier for officials to keep order, and that the children of people who complete college are more likely to do so themselves, disrupting the typical pattern of poverty and incarceration.

Findings like these have persuaded corrections officials in both Democratic and Republican states to embrace education as a cost-effective way of cutting recidivism. But Republican legislators in New York — which spends about $60,000 per inmate per year — remain mired in know-nothingism and argue that spending public money on inmates insults taxpayers.  They have steadfastly resisted Gov. Andrew Cuomo’s common-sense proposal for making a modest investment in prison education programs that have already proved highly successful on a small scale in New York’s prisons....

Prison education programs were largely dismantled during the “tough on crime” 1990s, when Congress stripped inmates of the right to get the federal Pell grants that were used to pay tuition.  The decision bankrupted many prison education programs across the country and left private donors and foundations to foot the bill for those that survived.

Despite limited and unreliable funding, these programs have more than proved their value.  New York lawmakers who continue to block funding for them are putting ideology ahead of the public interest.

August 16, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)

Sunday, August 13, 2017

Making a case against sex offender registries

Newsweek has posted this new opinion piece authored by Professor Trevor Hoppe under the headlined "Are Sex Offender Registries Too Strict?." As evidenced by these excerpts, it seems the author believes the answer to this question is yes:

In my work on sex offender registries, I have found that black men in the U.S. were registered at rates twice that of white men—resembling disparities found in the criminal justice system at large. However, these findings speak to the scope of the problem of American sex offender registries, as approximately 1 percent of black men in the U.S. are now registered sex offenders.  My research suggests that inequality is deeply tied to sex offender policies....

Imagine being punished for something you did three decades ago.  You served your time and thought it was in the past. Under American sex offender laws, moving on is nearly impossible: Most state policies are retroactive, meaning they apply to offenders who committed offenses before these laws were put in place.  While these laws are the subject of several ongoing court battles, most remain in effect.

Offenders are subject to extensive public notification requirements, which include state-run search engine listings that feature their address, mugshot, criminal history and demographic information. In some cases, offenders are also required to publicly post flyers with their pictures or run newspaper notices advertising their residency.  Some states, such as Louisiana, stamp “SEX OFFENDER” in large red script on driver’s licenses.

Having a mugshot disseminated across internet search engines is only the tip of the iceberg; once registered, offenders are subject to a wide array of housing and employment restrictions.  In many places in the U.S., sex offenders are effectively zoned out of cities and towns because there are no residential areas that satisfy all of the numerous regulations. For example, offenders may be prohibited from living within a certain number of feet from a playground. They are often left with no choice but to live under highways or in improvised communities, such as the one in Pahokee, Florida depicted in the New York Times 2013 short film, “Sex Offender Village.”...

Lawmakers ... argue that more invasive policies are necessary because sex offenders are highly likely to commit future crimes. In their view, informing the public of their criminal history will offer protection.  But as the U.S. federal government’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking notes, sex offender registration requirements “have been implemented in the absence of empirical evidence regarding their effectiveness.”

Now that all 50 U.S. states and Washington, D.C. have developed such registries, the evidence testing the effectiveness of sex offender registries is beginning to mount. It is mixed, at best.

One study followed sex offenders who were labeled “high-risk” for reoffending and who were released from Wisconsin prisons in the late 1990s. That study compared offenders who were subjected to limited public notification requirements with those who were subjected to extensive requirements.  The researchers found no significant difference in the average time between release and a future offense.  In other words, extensive public notification did not deter future offenses.

However, another study evaluated the likelihood of reoffending for sexual offenders labeled “high risk” released from Minnesota state correctional facilities. Here researchers found that offenders subject to community notification were somewhat less likely to commit another sexual offense.

Finally, a recent study found that sex offenders released in Florida between 1990 and 2010 had lower rates of recidivism than offenders of other types of crime -- 6.5 percent for sex offenses, as compared to 8.3 percent for nonsexual assaults and 29.8 percent for drug offenses.  Moreover, that study found that recidivism rates increased after the state legislature implemented sex offender registration requirements in 1997.

While the evidence is mixed that these policies are effective at deterring crime, the evidence of their collateral consequences is more consistent.  Several studies of registered sex offenders have revealed how registries reinforce class inequality by creating patterned experiences of unemployment, harassment and homelessness.

From a public safety perspective, scholars note that registries provide the public with a false sense of security: While the existence of sex offender registries reinforces a myth of “stranger danger,” most offenders in reality are acquaintances or family members.  Balancing the thin support of the registries’ effectiveness against the more robust evidence of their negative effects, one scholar recently concluded these policies do more harm than good.

My research suggests there is also a racialized dimension to the war on sex offenders that complicates arguments in their favor. The evidence does not strongly suggest registries are effective at deterring crime. Rather, their most lasting impact may be their exacerbation of inequalities based on race, class and gender.

August 13, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Saturday, August 12, 2017

"Trump Wants to Get Tough on Crime. Victims Don’t Agree."

The title of this post is the headline of this intriguing New York Times piece about the results of this interesting recent survey of "crime survivors." Here are excerpts:

Sending more people to prison, deporting illegal immigrants, cracking down on marijuana use — those are some of the things the Trump administration has said will make America safer.  But what do crime victims think about all this? It is a group whose views are rarely measured, but a poll commissioned by the Alliance for Safety and Justice sought to find out.

A few notes of caution: The group supports criminal justice reform, including incarcerating fewer people, and seeks to promote the voices of victims who agree.  And the random survey, which has a margin of sampling error of 3.4 percent, was taken in May, before President Trump repeatedly criticized Jeff Sessions, the attorney general, on Twitter.

But it is a rare chance to hear from victims, more than 800 of whom were asked about their views on the administration’s criminal justice policies.  By and large, their priorities appear very different from the president’s.

Half of respondents said they felt less safe since Mr. Trump took office, though it was not clear that this was because of his approach to criminal justice.  Only 39 percent said they felt less safe when Mr. Trump discussed crime or criminal justice.  But when the president posts on Twitter, the number who feel less safe jumps to 57 percent, according to the survey.

About three in four said they were happy with their local police and law enforcement in general. While only about 42 percent rated Mr. Trump favorably, that was higher than the president’s favorability rating among the general population at the time. About a third held positive views of Mr. Sessions.

When victims were asked to name two things that contributed most to crime in their communities, just 12 percent blamed undocumented immigrants.  Almost nobody thought there were too few people in prison.  Instead, more than half named drug and alcohol addiction, and nearly a third pointed to poor parenting.  Mental health issues and a lack of job opportunities also ranked high on the list.

“‘Lock ’em up and throw away the key,’ that’s the traditional way of thinking, but many victims don’t want ‘tough on crime’ and incarceration,” said Aswad Thomas, 34, who was shot twice in the back during a robbery attempt in Hartford in 2009, ending his plans to play professional basketball. “Most of us want more rehabilitation services for crime victims.”

Mr. Thomas, now the membership director at the Alliance, said once he found out that both of the young men who had shot him had been victims of crime themselves, he became convinced that offering counseling and trauma services to victims could itself help reduce violent crime.

A vast majority of respondents supported increasing treatment for addiction and mental health, while they were less enthusiastic about Trump administration policies like seeking the maximum punishment for drug offenders and increasing deportations, which only 40 percent of respondents favored.  Nearly two-thirds said they did not want federal drug laws to be enforced in states where marijuana use has been legalized....

A majority of respondents — 84 percent — said additional funding should be spent on rehabilitation and drug and mental health treatment programs for people in the justice system. Some views held true despite the respondents’ political leanings. Among those who said they held a favorable opinion of Mr. Trump, more than half chose addiction as a leading driver of crime.

August 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

"Certain Certiorari: The Digital Privacy Rights of Probationers"

The title of this post is the title of this new paper available via SSRN authored by Daniel Yeager. Here is the abstract:

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices.  As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law.  My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California — its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area — applies to probationers.  David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car.  Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting.  Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones — life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.”  Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases?  Because the Court’s most on-point precedents — one involving a probationer (United States v. Knights), the other a parolee (Samson v. California) — indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events.  One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court.  This Essay details why and how.

August 11, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, August 10, 2017

A reminder of why an active death penalty system in the US now seems so unlikley

Arguably the US has never had an active death penalty system, though there were a few hundred executions each year during the first decades of the 20th Century.  In the so-called modern death penalty era since 1976, the most completed executions in a single year was 98 (in 1999); there have been fewer than 50 executions in nearly every year over the last decades, and only 20 completed executions in 2016.  (This page from the Death Penalty information Center provides these recent details.)

As I have mentioned before, I find it notable that all the new law-and-order talk coming from the Trump Administration has not really included talk of ramping up use of the death penalty.  That, in my view, is a mark of a achievement by the abolitionist movement.  Another mark is the extraordinary difficulty these seems to be in securing death sentences, as discussed in this new Injustice Today piece headlined "Even in the deep red South, death sentences are on the decline." Here is an excerpt:

Twenty years ago, a brutal murder in a red state like Mississippi would likely guarantee a death sentence for a defendant.  But as last week’s sentencing of Scotty Lakeith Street illustrates, juries in the South and across the country continue to shift away from capital punishment.  In 1997, four people in Mississippi were sentenced to death; last year, 2016, not one person was. Street was sentenced to life without parole for stabbing retired teacher Frankie Fairley to death in 2014. The jury in Street’s trial, faced with a choice between the death penalty or life in prison, couldn’t reach a unanimous verdict, and split 10–2....

Those that opted for life without parole may have been swayed by Street’s extensive history of mental illness. As reported by WLOX, jurors heard testimony from his sister that Street had “been institutionalized so much, it’s beyond my count.” Street’s lawyers also presented testimony from a mental health provider who explained that Street suffered from schizophrenia and “needed to be in a group home with a caregiver.”  Street was also reported to have displayed “bizarre behavior,” including “putting plastic bags on his head to keep his brain from leaking out and running naked in public with objects tied to his scrotum.”...

Mental illness aside, death sentences are on the decline across the country.  Last year, 30 people were sentenced to death in the U.S., while in the mid-1990s, more than 300 people received capital sentences.  That decline in popularity is reflected in Street’s case, as well as in other Mississippi capital cases.  Though the death penalty’s legality remains alive and well, juries across the country are rejecting it.

August 10, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Notable new coverage of possible notable new appointment to US Sentencing Commission

Beth Reinhard has this interesting new Wall Street Journal article headlined "Sessions Promotes Tough-On-Crime Judge for Sentencing Panel."  The subheadline of this piece reports the core story: "Attorney General urges White House to nominate judge once nicknamed ‘Hang ’Um High’ Henry Hudson to panel that issues sentencing guidelines."  And here are excerpts:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines.  Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders.  In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year.  He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder.  “However, I offer no apologies.”

I do not know enough about Judge Hudson's sentencing (and political) history to know if he really would be eager or able to "shake up" the US Sentencing Commission, but I do know that advocacy by the US Justice Department always has a big influence on the USSC and that influence is likely only to grow if (and when?) the USSC is populated by Commissioners recommended by the Attorney General.  In recent years under the direction of Judge Patti Saris, who serves as USSC Chair from 2010 to 2016, there seemed to be a concerted effort by the Commission to act only via consensus. If Acting Chair Judge Pryor continues that ethos, it would be hard for a single USSC member to radically reverse the direction of USSC activity (though a single member could be able to block initiatives favored by many other colleagues). This article is written in a way that makes me think Judge Hudson will definitely be nominated to the USSC position, and it will be interesting to see who else might be (soon?) emerging as names for other open USSC spots.

Appropriately, this WSJ article reference the US DOJ's recent letter to the USSC about guideline amendment priorities, which the USSC has made available here.  Unsurprisingly, this letter starts by stressing the crime concerns that have been emphasized by AG Sessions in recent months.   The article fails to note another way AG Sessions can and has exercised some influence, namely through the Justice Department's "ex officio" position on the USSC.  As the end of the DOJ letter reveals (and as the USSC's own website reveals here), AG Sessions has recent put Zachary Bolitho in the role of DOJ's ex officio member of the USSC, whom I believe shares a lot of the "tough-on-crime" perspectives of his long-time boss Steve Cook.   (Zac just happens to be an OSU Law grad and was an award-winning law professor at Campbell Law before his recent re-appointment to DOJ, so I know and greatly respect Zac personally and professionally.) 

August 10, 2017 in Who Sentences? | Permalink | Comments (3)

"Why are we sentencing children to life in prison without parole?"

The question in the title of this post is the headline of this new Newsweek commentary authored by Vincent Southerland and Jody Kent Lavy.  Here are excerpts from the start and end of the commentary:

The barbaric practice of sentencing children to life in prison without the possibility of parole remains one of the most radically inhumane aspects of our criminal justice system.

For those of us who work daily to abolish this practice, the good news is that there are several recent U.S. Supreme Court decisions that deem this brand of sentencing unconstitutional and attempt to limit its use.

The bad news is that despite these decisions and a national trend moving away from this practice, several outlier states and counties refuse to comply with the Supreme Court’s most recent mandate, which effectively banned life without parole for all children capable of rehabilitation.

The shameful news is that the United States is the only country in the world that sentences children to life in prison without the possibility of parole, and that children of color -- African American children in particular -- and children who have been abused and traumatized are disproportionately handed these sentences.

Taken together, these facts lead to a simple conclusion: The time has come to put an end to life without parole sentencing for children....

By tackling our most extreme sentences for children, and acknowledging that this harshest of punishments is imposed disproportionately on children of color coming from some of our most vulnerable communities, we must come to terms with the fact that race and socioeconomic status play a huge role in determining how much compassion the justice system will show a young person.

This should not be the case -- all children are created equal, and there is no such thing as a throwaway child. Our sentencing policies should reflect those truths.

State lawmakers would be well served to join the national trend abandoning the practice of sentencing children to life in prison without a hope of release.  It is imperative that together we work toward a justice system that offers the mercy that all children deserve.

August 10, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Making a pitch for the Reverse Mass Incarceration Act of 2017

The Hill has this new commentary authored by former Representative Donna Edwards under the headline "What ever happened to mass incarceration reform?". The piece makes a pitch for the Reverse Mass Incarceration Act, and here are excerpts:

Though it feels like eons ago, the summer of 2016 promised to be one of bipartisan efforts to tackle the issue of mass incarceration. Unfortunately, the summer for criminal justice reform dissolved without fanfare into the craziness of the 2016 election. And, with the confirmation of Attorney General Jeff Sessions, who ushered in a 1980’s throw-back Department of Justice directive on low-level drug offenses, it remains unclear whether there might be a return to a bipartisan approach to criminal justice reform in the 115th Congress.

Nonetheless, a promising alternative strategy to reverse mass incarceration seems to have emerged. In the lead once again is Sen. Cory Booker of New Jersey, joined by former prosecutor, Sen. Richard Blumenthal of Connecticut, both Democrats. In the Reverse Mass Incarceration Act of 2017 (RMIA), the senators apply the lessons learned from the failed approaches of the 1990’s to lower crime and lower incarceration. The bill was modeled off of a Brennan Center proposal of the same name.

When the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) passed, a prescient few predicted the extreme escalation of incarceration in the nation’s prisons, a trend that likely began in the two decades before the 1994 law.  According to a recent Brennan Center analysis, even as crime declined by 10 percent from 1991-1994, prison populations exploded pre-1994 by 400 percent and doubled in the decade following the law’s passage.  With today’s well-documented growth in state and federal prison population, most people, including President Bill Clinton, accept that the 1994 incentives he championed were a mistake, rewarding states to build and fill more prisons....

A disproportionate number of people of color fill federal and state prisons. According to The Sentencing Project, more women than ever are behind bars and 60 percent of them have children at home.  In the last three decades incarceration rates for women have outpaced men by 50 percent, a 700 percent rate of growth since 1980.  And, while incarceration rates for African-American women have declined since 2000, twice as many African-American women as white women are incarcerated.  Incarceration rates for white and Hispanic women have continued to increase over the same period, by 56 percent and 7 percent, respectively.

In recognizing the creativity and diversity of states, as well as the overwhelming number of persons incarcerated under their jurisdiction, the RMIA provides incentivizes to states to reduce their incarceration rates.  Rather than mandate states to reduce incarceration, the Reverse Mass Incarceration Act of 2017 would instead enable states that achieve a 7 percent reduction in incarceration rates over 3 years without a significant increase in crime to access a $20 billion grant program.

Unlike the so-called “tough on crime” approaches of the 1990’s, RMIA would support evidence-based programs that reduce incarceration and crime.  Perhaps one of the chief benefits of this approach is behavior changes that occur throughout the system, from the prosecutors and sentencing judges, to the social service providers, to policy makers. These positive incentives can have nationwide impact to reduce incarcerated populations, providing the moral, social and fiscal incentives to help states reverse incarceration.

States are encouraged to be creative and to find solutions that best fit their state.  Eligible states might support ideas like drug treatment, education, job training, diversion or re-entry programs. Some states are engaging in these strategies already, and they and others should be encouraged to do more. The good news is that within the last decade, 27 states have decreased both crime and imprisonment, so there is a path forward....

While Congress may be deeply engaged in the Russia election-meddling investigation, this may be just the time to revive criminal justice reform. The Reverse Mass Incarceration Act of 2017 is a simple and straightforward approach to federal lawmaking, incentivizing good behavior — helping states to do the right thing to curb incarceration and keep communities safe. It’s an approach that’s ripe for bipartisanship.

August 10, 2017 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, August 9, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

"White-Collar Showdown"

The title of this post is the title of this essay recently posted to SSRN and authored by Mihailis Evangelos Diamantis. Here is the abstract:

The Sentencing Commission and the judiciary do not see eye to eye when it comes to punishing white-collar fraudsters.  Recent survey data collected by Judge Bennett and his co-authors confirms that judges prefer to sentence fraudsters at or below the minimum of the Sentencing Guidelines range.  This article asks whether that data should give the Sentencing Commission pause.  The survey results might just substantiate the Sentencing Commission's worry that judges are prone to cognitive bias in favor of white-collar defendants, with whom they often overlap demographically.

After suggesting that judges have no particular insight into the factors relevant to fraud sentencing, the article assesses the matter from criminal theory first principles: deterrence, rehabilitation, and retribution. It concludes — contrary to the apparent views of most judges and many white-collar criminal law scholars — that we should not be so quick to dismiss the guidelines as too harsh.

August 9, 2017 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, August 8, 2017

Too bad AG Sessions is not trying to take prison populations back to the 1980s or even the 1950s

Fe26824f81_the-wayback-machineIt has become popular to lament the various actions of Attorney General Sessions by saying he is taking us back to the 1980s.  Here is a smattering of critical commentary in this vein, the latest of which was published a few days ago in Reason:

Today, though, this Crime Report piece details a claim that AG Sessions has his wayback machine set even longer ago.  The piece is headlined "Sessions Takes DOJ ‘Back to the Fifties,’ Says New John Jay President," and here is how it gets started:

Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.

Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades — “I’d say to the fifties” — John Jay is well-positioned to step up, said Mason, who served as an Assistant Attorney General under President Obama.

Without commenting on which decade AG Sessions wants us to be living in, I just thought all this critical discussion of earlier eras provided an appropriate moment to remind everyone how much less the US relied on imprisonment in the 1950s and even the 1980s.

As detailed in this BJS document, back in 1955 the national prison population was just over 185,000, with about 20,000 in federal prison and the other 165,000 in state prisons. In 1985, the national prison population was just over 465,000, with nearly 30,000 in federal prison and the other 435,000 in state prisons.  And as this BJS report detailed, at the end of 2015, the national prison population was just over 1,525,000, with nearly 200,000 in federal prison and the other 1,325,000 in state prisons.  (There has been significant growth in the US population over the last 60 years, so the US incarceration rate has not increased quite as much as total incarceration levels.)  Of course, the Justice Department policies and practices along with changes in state policies and practices in the 1980s played a significant role in the increase in prison populations, and that is the foundation for the considerable hand-wringing about a return to 1980s-era criminal justice thinking.  

August 8, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 7, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, August 6, 2017

Guest post: "It’s Time to End Life without Parole for Children in the United States"

Guest-postI recently received a kind request to publish here a commentary authored by Rob Smith and Heather Renwick.  Rob is the Executive Director of the Fair Punishment Project at Harvard Law School, and Heather is Legal Director at the Campaign for the Fair Sentencing of Youth in Washington DC.  Here is what they have to say:

Sweeping reform over the past five years has brought the United States to a critical tipping point in the movement to end the arbitrary and cruel practice of sentencing kids to life in prison without parole. The Associated Press just reported that the number of youth serving life without parole around the country has dramatically fallen in the past five years due to legislative reforms and judicial opinions that recognize sentencing kids to life in prison is unnecessarily harsh and unconstitutional in most, if not all, cases.

In 2012, only five states banned life without parole sentences for juveniles. Today, just five years later, the number of states that ban life sentences for children has nearly quadrupled, bringing the total to nineteen states and District of Columbia. Another four states do not sentence children to life in prison, despite the fact that penalty is technically available.

The states that ban or no longer use life without parole for children reflect geographical, political, and ideological diversity. For example, West Virginia enacted the most progressive law in the country in 2014, and Nevada’s Republican-majority legislature unanimously passed a law that provides parole eligibility for all children sentenced in adult court.

Even Pennsylvania, the historical epicenter of juvenile life without parole in the United States, is moving unequivocally away from the practice. In the past year, over 100 individuals sentenced as children to life without parole in Pennsylvania have been resentenced, more than 60 of whom have returned home so far.

When the U.S. Supreme Court abolished the juvenile death penalty in 2005 in a case called Roper v. Simmons, it looked to the number of states that legislatively or functionally abandoned the juvenile death penalty as evidence of national consensus. The rapid movement away from life without parole sentences for youth has far surpassed the pace of reform that preceded Roper

Yet a handful of states remain outliers in their treatment of young people convicted of serious crimes.  Virginia has flouted U.S. Supreme Court opinions limiting the imposition of life sentences on children, and in Michigan, children continue to be sentenced to life without parole at a rate that far outstrips the rest of the country. So whether a child is sentenced to life without parole is entirely dependent on the state in which he or she is sentenced.

Last year in a case called Montgomery v. Louisiana — a clarification of its 2012 opinion Miller v. Alabama — the U.S. Supreme Court said that a sentence of life without parole should not be imposed on a child in most, if not all, cases. The Supreme Court rooted these decisions in the understanding that even children who commit serious crimes are capable of positive growth and change.

Yet as the AP just reported, inconsistent implementation of these U.S. Supreme Court decisions means that “[t]he odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.” And our nation’s kids deserve more than arbitrary justice.  It’s time for the U.S. Supreme Court to recognize what a rapidly growing number of states already have: that no child should be sentenced to life in prison without parole. 

August 6, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics | Permalink | Comments (7)

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Saturday, August 5, 2017

"Criminal justice reformers are hooked on drug courts, they should kick the habit"

The title of this post is the headline of this notable new commentary by Jasmine Tyler in The Hill. Here are excerpts:

With opioid overdose deaths hitting record highs throughout the US, and the White House Commission calling for declaring a state of emergency, many are looking for new solutions to addiction and overdose. But one proposal popular in some circles — the expanded use of drug courts — is not the perfect solution some make it out to be.

Drug courts are an old idea. Created in the 80s to expedite the overwhelmed court dockets created by the drug war, they have already enjoyed a great deal of fanfare and funding — from both sides of the political aisle. But despite the good intentions that often underpin them, they are a flawed solution.

These courts are squarely housed in the criminal justice system, where there is little medical expertise or care available but where punitive sanctions are plentiful. Physicians for Human Rights recently reported that drug courts “routinely fail to provide adequate, medically sound treatment for substance use disorders, with treatment plans that are at times designed and facilitated by individuals with little to no medical training.”

And, even though relapse is an expected part of recovery, people brought before a drug court with a positive drug test are often jailed, and can end up serving lengthy periods of time — sometimes more than had they been prosecuted through the regular criminal system.

Interestingly, the White House Commission didn’t even mention drug courts in the interim report released on July 31, but they did support a number of cutting edge, public health centered, responses such as expanding harm reduction approaches like medication-assisted therapy.

Other solutions the commission should explore for their final report include promoting diversion programs to keep people out of the criminal justice system, making the overdose prevention medication Naloxone available over the counter, and decriminalizing possession of drugs for personal use....

A recent broad study found that there is no evidence that compulsory treatment is effective and may do more harm, and even the Government Accountability Office has found the purported cost-savings difficult to substantiate.

In my days working as a sentencing advocate with public defenders, clients would frequently ask for jail time in lieu of drug courts. This wasn’t because they had no concerns for their own health and well-being, but the opposite. They were deeply concerned with their own health and well-being and felt drug courts would cause more problems for them in the long run....

Beyond the many questions about their effectiveness, drug courts do not address the fundamental reality that any kind of criminal sanctions are simply inappropriate for the overwhelming majority of drug offenders, whose only crime is the personal use of drugs or possession of drugs for personal use. In fact, by offering a notionally “softer” kind of criminalization, drug courts may actually help entrench that fundamentally untenable paradigm....

Drug courts might be a tool in the toolbox of a better system if they are focused only on offenses other than drug use or possession — for example, property crimes committed in connection with drug dependence. But even in that case, they should only be considered if they are set up to provide treatment that is medically appropriate, as well as other social supports, and if — and this is a big if — courts would truly take high risk, high need defendants as the National Association of Drug Court Professionals says they should.

Our communities deserve 21st century solutions and drug courts are, at best, a better version of a broken and outmoded system. They may sometimes have a useful place in the reality we’re stuck with, but they certainly aren’t the way forward. Instead of looking back at a criminal justice solution that has failed, the commission should stay on the right track and focus on health-based programs that address the opioid crisis.

August 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Friday, August 4, 2017

Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

As reported in this local article, headlined "Fayette judge rules death penalty unconstitutional for man under 21," a Kentucky judge reached a significant constitutional conclusion this week. Here are the basic details:

The death penalty is unconstitutional for a defendant who was younger than 21 at the time of his offense, Fayette Circuit Judge Ernesto Scorsone ruled earlier this week. Scorsone issued an order declaring the death penalty unconstitutional in the case of 21-year-old Travis Bredhold. He was 18 years and five months old when he was charged in 2013 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukeshbhai Patel.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn said in a statement Friday that she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States.” Red Corn said two other cases eligible for the death penalty and pending before Scorsone will be affected by his ruling.... Red Corn’s statement said the judge’s ruling “will result in delays” in all three cases.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger than 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments.

Bredhold’s defense team asked Scorsone to extend that exclusion to people 21 and younger. Prosecutors argued that the death penalty is constitutional and argued that there is no national consensus with respect to offenders under 21.

Scorsone disagreed. “Contrary to the commonwealth’s assertion, it appears there is a very clear national consensus trending toward restricting the death penalty, especially in cases where defendants are 18 to 21 years of age,” Scorsone wrote.

The judge also cited research showing that 18- to 21-year-olds are less culpable for the same reasons that the U.S. Supreme Court found teens under 18 to be. The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote.

“Given the national trend toward restricting the use of the death penalty for young offenders, and given the recent studies by the scientific community, the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age,” Scorsone wrote.

An individual evaluation that Bredhold “operates at a level at least four years below that of his peers” further supports the exclusion of the death penalty for Bredhold, the judge concluded.

I cannot yet find a copy of Judge Scorsone's opinion, but I am looking forward to finding it and seeing what he cites to support the assertion that there is a national trend toward restricting application of the death penalty "especially in cases where defendants are 18 to 21 years of age.” I know a lot of death penalty opponents are eager to see Roper extended to older offenders, but I am not aware of any legislation in any state that has precluded those age 18 or older from the reach of the death penalty.

UPDATE:  I just found the full opinion in this case via the Death Penalty Information Center's website, and the court relies heavily on the overall decline of executions and death sentences in recent years to make the "objective" case that application of the death penalty to defendants aged 18 to 21 are in decline. 

August 4, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sizable set of Senators inquire about BOP's continued failure to use compassionate release

As reported in this article from The Hill, headlined "Senators push federal prisons to expand compassionate release," a notable group of legislators sent a notable letter yesterday concerning the work of the federal Bureau of Prisons. Here are the details:

A bipartisan group of senators are calling on federal prison officials to follow through on recommendations to expand the use of compassionate release.

In a letter Thursday, Sen. Brian Schatz (D-Hawaii) and 11 other senators asked acting Federal Bureau of Prisons (BOP) Director Thomas Kane and Deputy Attorney General Rod Rosenstein to take a serious look at a prison bureau program that allows federally incarcerated people to appeal for early release if they present certain “extraordinary and compelling” reasons.

The lawmakers, who include Sens. Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), John Cornyn (R-Texas) and Cory Booker (D-N.J.), pointed to a 2013 report in which the Department of Justice inspector general recommended expanding the compassionate release program to deal with the increasingly large number of aging inmates with serious medical conditions.

Though the senators said the BOP adopted new policies following that report to expand its criteria, none of the 203 elderly inmates who applied under medical reasons in the 13 months following the report were approved.  Last year, the U.S. Sentencing Commission expanded and clarified the criteria for age and family circumstances that make an inmate eligible for compassionate release and encouraged the BOP to file a motion for release if an inmate meets the new policy.

In light of these changes, the senators asked Kane and Rosenstein how many compassionate release requests received in the last three years have been granted and denied, how many petitioners have died waiting for a response, what steps the bureau has taken to follow the commission’s directives and what action the bureau can take to increase its use of compassionate release.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Thom Tillis (R-N.C.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Dick Durbin (D-Ill.) and Tammy Duckworth (D-Ill.) also signed the letter.

A few prior related posts:

August 4, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16)