Tuesday, December 16, 2014

Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"

Download (3)I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum.  This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:

This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.

Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.

December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Should problematic police be on a registry like sex offenders?

The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:

There's a moral obligation to keep bad cops off the streets.  A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list.  Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.

When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history.  Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles.  The police union in New York City is among the strongest in the country.  When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination.  Even if it were, it would still be impossible to terminate the officer immediately.  While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.

But not everywhere is the situation as hopeless as in New York City.  In other parts of the country, cops can get fired relatively more easily.  But it doesn't stop them from finding jobs elsewhere.  Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance."  In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement.  In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....

This is just a sampling of stories that received enough local attention to gain some prominence.  The situation is unconscionable.  Police found unfit for duty in one jurisdiction shouldn't be employed in another.  Cops who resign to avoid disciplinary charges shouldn't slither their way into another department.  Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....

State governments, and the federal government, can help.  Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation.  But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own.  Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance.  The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve. 

December 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack (0)

"Why Plea Bargains are Not Confessions"

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN. Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

December 16, 2014 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack (0)

Monday, December 15, 2014

NJ Supreme Court clarifies legitimacy and importance of considering post-offense conduct at sentencing

This local article, headlined "Court: ‘Post-offense conduct’ must be gauged at sentencing," provides an effective summary of a notable New Jersey Supreme Court ruling today. Here is the start of the article:

A man who pleaded guilty to a drug offense was entitled to have the positive changes he made in his life between the time of his plea and sentencing considered by the judge determining punishment, the state Supreme Court ruled Monday.

The state’s highest court ruled that sentencing judges must consider relevant, post-offense conduct when they weigh aggravating and mitigating factors during their sentencing analysis. In the Morris County case involving Joseph M. Jaffe, now 42, and last of Brick, the sentencing judge told his lawyer in 2012 that New Jersey law precluded him from considering Jaffe’s conduct in the year-long span between his guilty plea in August 2011 and sentencing in August 2012.

“In conclusion, the trial court should view a defendant as he or she stands before the court on the day of sentencing,” the Supreme Court said in its opinion, released Monday. “This means evidence of post-offense conduct, rehabilitation or otherwise, must be considered in assessing the applicability of, and weight to be given to aggravating and mitigating factors,” the court said.

The full unanimous opinion in New Jersey v. Jaffe, No. A-12-13 (N.J. Dec. 15, 2014), is available at this link.  Here is how the opinion gets started:

Defendant Joseph M. Jaffe received a three-year state prison sentence almost a year after pleading guilty to an accusation charging him with third-degree conspiracy to possess cocaine with the intent to distribute.  At sentencing, defense-counsel asked the court to consider defendant’s rehabilitative efforts since he was arrested and charged. The trial court declined to weigh such evidence in assessing mitigating factors, concluding that applicable law did not allow him to consider “post[-]offense conduct.” In light of our recent holding in State v. Randolph, 210 N.J. 330 (2012), that a defendant should be assessed as he stands before the court on the day of sentencing, we conclude that the sentencing court must consider a defendant’s relevant post-offense conduct in weighing aggravating and mitigating factors.

A judge’s sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing.  Because we decide here that the trial court must consider at sentencing evidence of a defendant’s post-offense conduct, we are compelled to remand for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors.

December 15, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Police prevail 8-1 in first notable criminal justice merits ruling of SCOTUS term

The Supreme Court completed its last bit of formal action for the year this morning with an orders list and a few opinions.  One opinion is a bit of a holiday gift for criminal justice fans: a relatively short ruling in Heien v. North Carolina, No. 13–604 (S. Ct. Dec. 15, 2014) (available here), concerning Fourth Amendment application.  Here is the alignment of the Justices and the start of the majority opinion:

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion.

The Fourth Amendment prohibits “unreasonable searches and seizures.”  Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake.  An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat.  The driver has not violated the law, but neither has the officer violated the Fourth Amendment.

But what if the police officer’s reasonable mistake is not one of fact but of law?  In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required.  The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.  We hold that it can.  Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

Obviously, Heien is not a sentencing case or even an issue that I could see readily having some sentencing echoes.  But the alignment of the Justices on this matter might lead some to identify additional tea leaves to read about the various criminal justice perspectives embraced by various members of the Roberts Court.

December 15, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation

This recent article from the Washington Post, headlined "Early federal sentencing recommendation for McDonnell: At least 10 years in prison," spotlights the seemingly severe sentence recommended by the federal sentencing guidelines for a former Governor's corruption.  Among other notbale aspects of this high-profile sentencing story is the fact that former Virginia Gov Bob McDonnell is now facing a guideline sentencing range that is more than three to four times longer than the longest possible sentence he would have faced had he been willing to plead guilty on terms urged by federal prosecutors.  Here are the notable details at this stage of a developing high-profile sentencing story:

The guidelines recommended by the U.S. probation office are preliminary, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said that Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommendations more than 70 percent of the time in recent years. “It’s of critical importance,” said Scott Fredericksen, a white-collar criminal defense lawyer. “The fact is, the vast majority of times, courts follow those recommendations closely.”

The matter is far from settled. The probation office recommended a punishment from 10 years and a month to 12 years and 7 months. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime, the defendant’s role and the amount of loss. The judge has yet to see the arguments from each side.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury items. McDonnell is scheduled to be sentenced Jan. 6. His wife’s sentencing is scheduled for Feb. 20, and her guideline range is expected to be lower than her husband’s. The probation office has not yet filed a report concerning her.

It is unclear how the probation office determined that the former governor’s crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to The Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Star Scientific, Williams’s dietary-supplement company, at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife....

White-collar criminal defense lawyer Matthew Kaiser said McDonnell’s range probably was increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also probably faulted McDonnell because his testimony was contrary to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — although Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to persuade Spencer to modify the recommended range.

Even then, Spencer is not bound by the guideline. Defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document outlining the sentence they believe McDonnell should receive and why. It is unclear whether their efforts to move Spencer away from the probation office’s recommended range will be fruitful.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. In about 21 percent of cases, they imposed sentences below the guideline range without a request from prosecutors to do so. Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.... Brian Whisler, a defense lawyer who used to work as a federal prosecutor in

Richmond, said that Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie, represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9.5 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressman William J. Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

December 15, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1) | TrackBack (0)

Sunday, December 14, 2014

Detailing the dysfunction of Pennsylvania's death penalty system

Download (2)This lengthy local article, headlined "Capital punishment in Pennsylvania: When death means life: Commonwealth's death penalty system called expensive and dysfunctional," provide a review of how the Keystone State has a capital punishment system that seems to function as if it were operated by the Keystone Cops. Here are excerpts from the article, which is the first is an extended series:

Pennsylvania's death penalty has cost taxpayers more than $350 million for a dysfunctional system that has sentenced hundreds but hasn't executed anyone in 15 years, a Reading Eagle analysis has found.  The newspaper analysis comes three years after state lawmakers called for an intensive report on Pennsylvania's death penalty, and as a Montgomery County lawmaker maps out a proposal to abolish the system.

The long-overdue report is at least several months away from being issued. There still has been no reckoning of the system's massive financial or psychological cost — including the immeasurable agony of justice-seeking family members and the pain of families waiting for condemned relatives to be executed. "My sister didn't have a choice about when her life ended. Why should he?" said Diane Moyer of Robesonia, referring to convicted killer Glenn Lyons of Reading.

Lyons is one of 185 condemned inmates, making Pennsylvania's death row the fifth largest in the nation.  He's also one of 12 death row inmates prosecuted for murders committed in Berks County, which along with York County has the second-highest number of death row inmates in the state behind Philadelphia's 69.  It was 1937 when Pennsylvania last executed someone for a murder that took place in Berks.

Observers of the state's system both locally and nationally agreed it is deeply flawed. It is likely to get even more scrutiny as prosecutors move ahead with a death penalty case against Eric Frein, accused of ambushing and murdering a state trooper this year....

The newspaper's cost estimate is likely a conservative number.  That's because the estimate, which relies on a 2008 Maryland study by the Urban Institute, was calculated using the Pennsylvania inmates now on death row.  The estimate does not account for unsuccessful death penalty cases tried by prosecutors, nor does it include death row inmates whose sentences were overturned on appeal.

The 2008 study — which produced findings similar to other state studies — found that Maryland spent an average of $1.9 million more on cases that led to death sentences than on cases where the death penalty could have been sought but was not.  At least two experts, including the researcher of the Maryland report, said the study was a fair comparison for estimating the cost to Pennsylvania taxpayers.  Applying the Maryland per-case figure to Pennsylvania's current 185 death row inmates yields a Pennsylvania cost of $351.5 million....

The state has executed three men, all of whom gave up their appeals, since the U.S. Supreme Court reinstated the death penalty in 1976.  But with so few executions among the 429 death warrants Pennsylvania governors have signed since 1985, experts say it's critical lawmakers know the cost to justify budget expenses with a projected $1.85 billion state shortfall in the upcoming fiscal year.  So far, the death penalty hasn't been part of the budget debate.

For the loved ones of the victims, like Moyer, the financial cost of the death penalty is outweighed by the emotional toll of likely never having the killer's execution carried out. Lyons used two kitchen knives to stab Leibig, 45, of Millcreek Township, Lebanon County, again and again, investigators said.  The brutal attack lasted up to 15 minutes.  Lyons, now 49, was convicted and sentenced to death by a Berks jury, but claims he didn't kill Leibig.

The state Supreme Court denied his appeal in 2013, and his execution was set for August, but a federal judge granted him a stay in July, and his appeal process continues.  Leibig's family is frustrated and disappointed, knowing the state may never follow through with his execution.  "He'll keep fighting and playing the system," Moyer said.  "He had a fair trial, and he was guilty.  Put him to death. Give him the injection."...

A death penalty that doesn't actually execute people frustrates those on both sides of the debate.  Death penalty proponents blame an endless and costly appeals process.  Opponents criticize a system with too little funding for poor defendants....

At least one Berks judge who once supported the death penalty has had a change of heart. The judge, who asked not to be identified, had thought execution was a just punishment for the state's worst offenders and a deterrent to others.  But after seeing how cases continuously circle the courts, the judge now thinks the death penalty is a waste of time and money and is unnecessarily difficult on the victim's loved ones holding out hope for an execution.

"It's horrible for the families," the judge said.  Death penalty rulings aren't foolproof and should be scrutinized, but there should also be a limit on appeals, the judge said. "Now there is hearing after hearing.  It never ends," the judge said....

"There is a problem with a law that is never carried out," he said. State Rep. Thomas R. Caltagirone, a Reading Democrat, said he's heard from victims' families how hard it is to sit and wait for the death penalty to be carried out.  "They say: 'We lost a loved one. Why is he still living? Where is the justice?'" Caltagirone said.  "And victim's rights groups are livid about the endless appeals."  But Caltagirone also said he wonders whether it's appropriate for the state to execute someone.  "I'm kind of torn on it," he said.

More than a dozen states have analyzed death penalty costs.  Some states found the costs nearly 50 percent to 70 percent higher than non-death penalty cases.  While the costs vary across the U.S., all found capital trials more expensive.  The reason?  Mostly because the process is more complicated at every point in the case.  A death penalty case involves more attorneys, witnesses and experts.  Jury selection is long, as are the trials.  Also the cases usually have more pre-trial motions and require a separate trial for sentencing.

Incarcerating death row inmates in solitary confinement is also expensive — about $10,000 more a year than inmates serving a life sentence, according to the Pennsylvania Department of Corrections.  And, the majority of death penalty trials on appeal are found to be flawed, some significantly, and must be redone, adding to the price tag.

The state has been studying a laundry list of issues since 2011 when lawmakers directed the Joint State Government Commission to research capital punishment.  Berks officials did not know what the costs of trying capital cases are to taxpayers. "Definitely, the death penalty extremely strains our resources," Adams said.  "There's no way that we can put a financial number to that."...

"You can't choose to do it and not pay for," said Marc Bookman, a former public defender and director of the Atlantic Center for Capital Representation in Philadelphia, a nonprofit resource center.  "It's really expensive to do it properly and it's even more expensive to do it incorrectly," he said.

Last year, Maryland became the 18th state to abolish capital punishment.  Maryland Gov. Martin O'Malley cited the cost — roughly three times as much as life without parole — as one of the factors for repealing the death penalty.  John Ramon, author of "The Cost of the Death Penalty in Maryland," said the costs to Pennsylvania taxpayers are likely comparable, assuming trial and incarceration expenses are similar. "It's not as big as an assumption as it sounds," Ramon said....

Knowing the cost, Ramon and others said, changes the conversation on a very polarizing issue. "I think it changes the nature of the debate because what it's saying is let's not just ask if the death penalty is better than not having the death penalty," Ramon said. "It's saying, given the death penalty is far more expensive, is it still worth having?"

December 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Saturday, December 13, 2014

"The Misleading Math of ‘Recidivism’"

The title of this post is the headline of this effective recent piece of reporting and analysis by Dana Goldstein for The Marshall Project.  Here are excerpts:

Recidivism, the rate at which former inmates run afoul of the law again, is one of the most commonly accepted measures of success in criminal justice.... [But] recidivism, though constantly discussed, can be widely interpreted — and misinterpreted....

In some studies, violating parole, breaking the law, getting arrested, being convicted of a crime, and returning to prison are all considered examples of recidivism. Other studies count just one or two of these events as recidivism, such as convictions or re-incarceration.

When the federal government calculates a state’s recidivism rate, it uses sample prisoner populations to tally three separate categories: rearrests, reconvictions, and returns to prison, all over a one- to five-year period from the date of release. In contrast, a widely cited 2011 survey from the Pew Center on the States relied on states’ own reporting of just one of those measures: the total number of individuals who returned to prison within three years.

Both the federal and Pew statistics leave out an entire group of former prisoners: those who break the law but don’t get caught. That’s why some recidivism research ... relies on subjects’ self-reports of illegal activity.

Another inconsistency across recidivism studies is the period of time they cover. Though three to five years is considered the gold standard, many studies examine a much smaller time frame. One recent study claimed that a parenting program for prisoners in Oregon reduced recidivism by 59 percent for women and 27 percent for men. But the study tracked program participants for only a single year after they left prison. The likelihood of reoffending does decrease after one year. But according to the Bureau of Justice Statistics, an additional 13 percent of people will be rearrested four years after their release....

In its 2011 Brown v. Plata decision, the U.S. Supreme Court cited California’s stratospherically high recidivism rates (according to the Bureau of Justice Statistics, close to 70 percent of former inmates in the state return to jail or prison within three years of release) as evidence that California prisons do not rehabilitate, but instead “produce additional criminal behavior.” The justices blamed recidivism on overcrowding and the lack of adequate medical services behind bars, and ruled those conditions unconstitutional. The ruling required California to decrease its prison population.

But what if the court’s take on the causes of California’s high recidivism rate is wrong? What if it isn’t primarily prison overcrowding that causes reoffending, but an overly punitive parole system — the same trend that drives the majority of recidivism in New York? That’s what the data shows. Parolees in California are actually less likely than parolees in New York or Illinois to commit a new crime. Yet they are exponentially more likely to be arrested and sent back behind bars for violating the conditions of their parole, according to an analysis of BJS data from researcher Ryan G. Fischer. California law punishes technical parole violations with a few days to four months in a county jail or state prison....

[U]sing federal recidivism data for inmates who left state prisons in 1994, parole violations accounted for the entirety of the gap between California’s recidivism rate and the recidivism rates of other large states. In other words: Because of the differences in how states and localities enforce parole, recidivism rates tell us little about the reoccurrence of the types of crimes with which the public is most concerned: crimes that have a victim.

December 13, 2014 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (5) | TrackBack (0)

Friday, December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Federal task force on corrections getting geared up for (big?) work in 2015

Logo5As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced.  Here is the context for this notable development:

[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia.  They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.

There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...

Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."

The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012.  Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.

Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House.  He is a member of the conservative justice-reform group Right on Crime.  Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."

Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House.  Mollohan has presided over many hearings on corrections issues.  In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...

The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."

The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance.   A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....

Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.

In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year.  The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.

This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system.  And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.

December 12, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Texas top court rules juveniles getting transferred to adult court too readily

As reported in this Texas Tribune article, headlined "CCA Offers Guidance to Courts Trying Teens as Adults," the top criminal court in Texas issued a significant ruling earlier this week about bringing juvenile offenders into the adult system. Here are the details:

A Houston teen sentenced to 30 years in prison should not have been tried as an adult, the state's highest criminal court ruled Wednesday in a decision calling for greater judicial scrutiny before young defendants are transferred into the adult court system.

"The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule," Court of Criminal Appeals Judge Tom Price wrote in the majority opinion, agreeing with an earlier ruling by the 1st Court of Appeals in Houston....

Trial judges can transfer a juvenile's case to adult court after considering criteria including whether the crime was against a person or property, the juvenile defendant's maturity level and previous criminal record. The court's ruling zeroes in on how prosecutors prove a juvenile has sufficient maturity to be tried as an adult. In Moon's case, prosecutors called one witness, the arresting officer.

In Wednesday's opinion, Price, citing a 1995 change in the law, said that a juvenile court should "take pains to 'show its work' in coming to that certification decision.

"This legislative purpose is not well served by a transfer order lacking in specifics that the appellate court is forced to speculate as to the juvenile court’s reasons for finding transfer to be appropriate or the facts the juvenile court found to substantiate those reasons," Price wrote.

The Houston Chronicle has reported that when Moon was certified, Harris County judges were granting prosecutors' requests for certifications about 95 percent of the time.

The Court of Criminal Appeals' decision sends Moon's case back to Harris County, where a spokesman for the prosecutor's office said they were "disappointed" about the court's ruling. "But we're going to revisit the case, and there's a possibility we will try to recertify him," said Jeff McShan, spokesman for the Harris County district attorney's office.

"It's a nice Christmas present," said Jack Carnegie, Moon's attorney, adding that the ruling gives trial courts better guidance on what they need to do certify juvenile defendants. "This is a roadmap for how you have to do it now."

The full 40-page Texas ruling in this case is available at this link.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Senator Grassley introduces juvenile justice bill showing eagerness to do bipartisan reforms

This article from The Hill, headlined "Next Judiciary chairman eyes treatment of minors," provides an encouraging sign that the incoming new leadership in the Senate may be eager to work on at least some bipartisan federal criminal justice reforms. Here are the details:

Sens. Chuck Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.) introduced a bill Thursday that would update national standards covering how the justice system treats minors.

With Grassley preparing to take over as chairman of the Senate Judiciary Committee in the next Congress, the move is an early signal of the committee’s potential criminal justice agenda. Grassley has been particularly supportive of new accountability measures that will be included in the bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA).

“The Juvenile Justice and Delinquency Prevention program helps in preventing at-risk youth from entering the system and helps those in the system become valuable members of communities across the country,” Grassley said in a statement. “This bipartisan bill will be a good starting point for reauthorizing this important program as we begin a new Congress.”

One advocate said Thursday that Grassley’s sponsorship will be a boon for the bill, but that the measure still has a long journey to becoming law. “I think as head of Judiciary, with his name on it, that is going to be a huge help,” said Marcy Mistrett, the CEO of the Campaign for Youth Justice.

The bill, which will not see any movement before the end of the current Congress, aims to beef up juvenile justice standards that haven’t been updated in more than a decade. The juvenile system is estimated to detain 60,000 minors on any given night.

“This legislation will strengthen the main protections of the JJDPA, and improve the conditions and practices that can determine whether offenders leave our justice system as productive members of society,” Whitehouse said in a statement.

One update would make it harder for states to lock up children who have committed “status offenses” that would not be an offense if they were an adult, like running away from home or skipping school. Another update would require that states do more to make sure they are not confining minors near adults. It would also give states new direction on how to reduce racial and ethnic disparities in the juvenile justice system....

The bill comes at a moment when there is bipartisan support for certain reforms to the criminal justice system. Grassley has had a historical interest in juvenile justice. But it is not known if he will have the committee tackle some of the thorny problems in the adult criminal justice system, which encompasses everything from policing to prison conditions.

The United States imprisons more people than any other nation in the world, something a smattering of lawmakers have been moving to change. Sens. Mike Lee (R-Utah) and Dick Durbin (D-Il.) have introduced a bill that would make small changes to the federal mandatory minimum sentences that have led to black Americans being imprisoned at disproportionate rates. It’s received support from big names both sides of the aisle, including Sens. Rand Paul (R-Ky.), Ted Cruz (R-Texas) and Elizabeth Warren (D-Mass.). But Grassley opposes the measure and will decide whether it comes up for a vote on the Judiciary Committee, where it would likely pass.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Repeat drunk-driver tells fishy story to explain erratic driving

Beer batterThis local story from Wisconsin tells a funny story about what (as regular readers know) I do not think is a very funny crime often committed again and again and again by certain violent career criminals.  The story is headlined "Man charged with 10th OWI; tells officer he'd eaten beer battered fish," and here are the details:

An Adams County man will be charged with his 10th OWI.  75-year-old John Przybyla was pulled over October 12. He was driving north on State Highway 13 in the Township of Dell Prairie.  Officers pulled him over because he crossed the center line and had a broken tail light.

The officer asked Przybyla if he had been drinking.  He said that he hadn't, and that he'd only eaten beer battered fish.

The officer conducted field sobriety tests and Przybyla's preliminary breath alcohol test was .062.  He can't have a PBT over .02 because of earlier convictions.

He faces an additional charge of driving with a revoked license after a 3rd OWI and three other traffic citations.  Przybyla was first convicted for an OWI in 1995.

The repeat offender's amusing excuse for his crime is, of course, what drew me to this story. But I also think it is significant and telling that a person can be a violent menace to innocent people on the roads over and over again and yet as a society we still general fail to impose serious sanctions likely to incapacitate this kind of violent career criminal.  But if someone is caught selling even a relatively small quantity of illegal drugs even a few times, our laws will frequently threaten or mandate very lengthy prison terms.

December 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack (0)

Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns

The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.”  His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter.  One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.”  Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.”  Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern.  The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election.  “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois.  A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”

Judicial races once were largely polite, low-budget affairs.  But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation.  Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash.  As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.  

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals.  In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations.  But fear works, election strategists believe.  Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?

December 11, 2014 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"As Though They Were Not Children: DNA Collection from Juveniles"

The title of this post is the title of this notable new paper by Kevin Lapp now available via SSRN. Here is the abstract:

Law enforcement craves data.  Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles.  DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted.  So alluring is DNA collection that the practice has rapidly expanded to juveniles.  The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system.  A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection.  Law enforcement also seeks DNA samples from juveniles based on their consent.

This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law.  It then situates DNA collection from juveniles within the law’s longstanding and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice.  Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that DNA collection from juveniles based on contact with the criminal justice system is not reasonable and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced.  Many of its benefits, including deterrence, are lost with regard to juveniles.  The Article calls for the prohibition on DNA collection following an adjudication of delinquency or an arrest, and a ban on consent collection from juveniles.  This will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.

December 11, 2014 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 10, 2014

Second Circuit panel finds evidence insufficient to support two major insider trading convictions

There is big news in the white-collar crime (and sentencing?) world this morning coming out of New York thanks to the Second Circuit's significant new opinion in US v. Newman, No. 13‐1837 (2d Cir. Dec. 10, 2014) (available here).  This New York Times article about the ruling helps spotlight why this is Newman ruling is a very a big deal:

A federal appeals court on Wednesday overturned two of the government’s signature insider trading convictions, a stunning blow to prosecutors and their campaign to root out illegal activity on Wall Street.

In a 28-­page decision that could rewrite the course of insider trading law, sharply curtailing its boundaries, the United States Court of Appeals for the Second Circuit in Manhattan tossed out the case against two former hedge fund traders, Todd Newman and Anthony Chiasson. Citing the trial judge’s “erroneous” instruction to jurors, the court not only overturned the convictions but threw out the cases altogether....

The unanimous decision – the first higher court rebuke of an insider trading case filed by Preet Bharara, the United States attorney in Manhattan – could portend a broader revisiting of Mr. Bharara’s insider trading crackdown. It will also offer a blueprint for traders to defend future insider trading cases, a development that is likely to unnerve prosecutors while delighting the defense bar.

Here are a few paragraphs from the start of the Newman opinion:

Defendants‐appellants Todd Newman and Anthony Chiasson appeal from judgments of conviction entered on May 9, 2013, and May 14, 2013, respectively in the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) following a six‐week jury trial on charges of securities fraud....

The Government alleged that a cohort of analysts at various hedge funds and investment firms obtained material, nonpublic information from employees of publicly traded technology companies, shared it amongst each other, and subsequently passed this information to the portfolio managers at their respective companies.    The Government charged Newman, a portfolio manager at Diamondback Capital Management, LLC (“Diamondback”), and Chiasson, a portfolio manager at Level Global Investors, L.P. (“Level Global”), with willfully participating in this insider trading scheme by trading in securities based on the inside information illicitly obtained by this group of analysts.   On appeal, Newman and Chiasson challenge the sufficiency of the evidence as to several elements of the offense, and further argue that the district court erred in failing to instruct the jury that it must find that a tippee knew that the insider disclosed confidential information in exchange for a personal benefit.  

We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.  Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against Newman and Chiasson for two reasons.    First, the Government’s evidence of any personal benefit received by the alleged insiders was insufficient to establish the tipper liability from which defendants’ purported tippee liability would derive.    Second, even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chiasson knew that they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties. 

 Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Though this Newman opinion does not discuss formally sentencing issue, I cannot help but think that modern white-collar sentencing realities might be playing a role (perhaps a significant role) in the review and ultimate rejection of insider-trading convictions here. Both defendants appealing in this case were sentenced to a significant number of years in prison, and appellate judges are surely aware of how high the stakes now are for white-collar defendants subject to novel and aggressive prosecutorial practices.

December 10, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (8) | TrackBack (0)

Various appeals do not interfere with Georgia and Missouri completing final executions of 2014

As detailed in this lengthy AP/CBS article, headlined "Missouri, Georgia execute murderers, one a cop killer," two executions were carried out over the last 24 hours.  Here are some of the details:

A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year.  In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.

The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.

Goodwin's execution began at 1:17 a.m., more than an hour after it was scheduled, and he was pronounced dead at 1:25 a.m.  Efforts to spare Goodwin's life centered on his low IQ and claims that executing him would violate a U.S. Supreme Court ruling prohibiting the death penalty for the mentally disabled.  Attorney Jennifer Herndon said Goodwin had an IQ of 73, and some tests suggested it was even lower....

Missouri's 10th execution of 2014 matches the state's previous high of nine in 1999. Neither Missouri nor Texas has another execution scheduled this year.  Texas, Missouri and Florida have combined for 28 of the 34 executions in the U.S. this year.  Missouri has scheduled one execution each month since November 2013.  Two were halted by court action, but 12 were carried out over the past 14 months.

In Georgia, Robert Wayne Holsey, 49, was declared dead at 10:51 p.m. at the state prison in Jackson, authorities said.  Holsey was sentenced to die for the Dec. 17, 1995, killing of Baldwin County sheriff's deputy Will Robinson.  A jury convicted Holsey in February 1997.

Holsey robbed a convenience store in the town of Milledgeville early on Dec. 17, and the store clerk immediately called police, describing the suspect and his car, prosecutors said. According to court documents, Robinson stopped a car at a nearby hotel minutes later and radioed in the license plate number.  As Robinson approached the vehicle, Holsey fired at him, prosecutors said.  The deputy suffered a fatal head wound....

Holsey's lawyers filed a number of last-minute appeals to stop the execution but they were all rejected.  Holsey was executed nearly an hour after the U.S. Supreme Court rejected a request for a stay....

Holsey's lawyers had argued in a clemency petition that their client should be spared lethal injection because his 1997 trial was mishandled by an alcoholic lawyer who was distracted by his own problems.  The trial lawyer died in 2011.  The original lawyer told the court that intellectual disability would not be a factor in the case, despite records showing Holsey was intellectually disabled, Holsey's lawyers argued.  And the jury also didn't hear details about Holsey's childhood, which was characterized by horrifying abuse at the hands of his mother, according to the petition.

In their efforts to halt the execution, Holsey's lawyers argued that he was intellectually disabled. The U.S. Supreme Court in 2002 barred execution of the intellectually disabled, but left the states to determine who is intellectually disabled.  Georgia requires death-row inmates to prove intellectual disability beyond a reasonable doubt in order to be spared execution on those grounds.  Courts have consistently upheld Georgia's toughest-in-the-nation standard of proof on this issue....

The state of Georgia argued in court filings that Holsey is not intellectually disabled.  An expert found that Holsey had a learning disability but was not disabled, and his siblings relied on him as a leader, the state's lawyers argued.  The state also disputed the idea that Holsey's trial lawyer was ineffective, saying the prosecutor in the case and the judge both testified that the original lawyer performed very well.

December 10, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 9, 2014

Madoff aides finally getting sentenced for their roles in massive Ponzi scheme

As reported in this new AP article, a notable set of fraud sentences are being handed out this week and next in New York federal court.  Here are the early parts of a high-profile white-collar sentencing story:

The former secretary for imprisoned financier Bernard Madoff was sentenced Tuesday to six years in prison after she apologized to victims of the multi-decade, multi-billion dollar fraud and berated herself for failing to see past her boss's influence and the riches he bestowed on her.

Annette Bongiorno, 66, was sentenced in Manhattan by U.S. District Judge Laura Taylor Swain, who said she believed Bongiorno's testimony at trial that she was largely duped by Madoff into manufacturing fake trade results for his private investment business.  She called her "a pampered, compliant and grossly overcompensated clerical worker who supervised other clerical workers with a ferocious enthusiasm."

The judge said Bongiorno "could and should have recognized that Mr. Madoff's success seemed impossible because it was impossible." Swain added: "Ms. Bongiorno chose to put her life and the life of others in the wrong hands."

One of Madoff's computer programmers was awaiting an afternoon sentencing.  Bongiorno was convicted earlier this year along with four others after a six-month trial.  Sentencing proceedings resulting from it will conclude on Monday.

On Monday, Madoff's director of operations was sentenced to a decade in prison.

Prosecutors said in court papers that Bongiorno was "at the very heart of the fraud" for decades. They had sought a prison sentence of more than 20 years. The fraud cost thousands of investors nearly $20 billion. Madoff, 76, was arrested in December 2008 and is serving a 150-year prison sentence.

Before she was sentenced, Bongiorno portrayed herself as a loyal worker who was in over her head from the time she was hired at age 19. "Not once in my 40 years there did anyone say to me, 'Annette, this is not the way it's done in the real world,'" she said. "I thought I was doing my job as I thought it should be done."...

The judge, who also ordered forfeiture of $155 billion, said she will recommend that Bongiorno serve the last year of her prison term in home confinement.

December 9, 2014 in Booker in district courts, Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack (0)

"Structuring Pre-Plea Criminal Discovery"

The title of this post is the title of this notable new article by Daniel McConkie Jr. now available on SSRN. The piece spotlights the various links between criminal discovery rules and sentencing procedures and outcomes, and here is the abstract:

Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.

This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide.  Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence.  The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime.  But defendants who plead guilty effectively act as their own judge and jury.  Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing.

The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process.  This article proposes tailoring that test to the pre-plea discovery context.  The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are there clear rules that allow judges, before a guilty plea, to regulate prosecutors’ decision not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society.

One hopeful development is that several district courts, pursuant to Congressionally-granted authority, have promulgated local rules for pre-plea discovery.  Although the Constitution does not require it, I argue that Congress should adopt several of these time-tested rules to give both clear standards to prosecutors and authority to judges to enforce liberal pre-plea discovery.

December 9, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack (0)

Lots more notable new posts at Collateral Consequences Resource Center

Last week I noted in this post all the notable posts appearing at the Collateral Consequences Resource Center.  Just a week later, I see again that te CCRC has lots of new content on a bunch of issues not too often discussed in other like fora, such as these recent postings that seemed worth highlighting:

December 9, 2014 in Collateral consequences, Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack (0)

Scheduled Georgia execution raising again issues of poor lawyers and intellectual disability

This New York Times article reports on the legal issues surrounding the fate of a condmned murderer scheduled to be executed tonight in Georgia.  Here are the basics:

A parole panel in Georgia refused on Monday to grant clemency to a man who is scheduled to die by lethal injection on Tuesday evening, apparently unpersuaded by evidence that he was ineptly represented at trial by a drunken lawyer, had an exceptionally harsh childhood and has a severe intellectual deficit.

But in what could be a legal decision with wider effects, lawyers for the man, Robert Wayne Holsey, were still waiting for the Georgia Supreme Court to respond to a last-­minute appeal. They argued that the state’s standard for determining intellectual disability in capital cases — the country’s most stringent — runs afoul of a recent decision by the United States Supreme Court.

Mr. Holsey was convicted of armed robbery and murder in 1997 and sentenced to death. He had robbed a convenience store and shot and killed a pursuing officer.  His trial lawyer later admitted that at the time he was drinking up to a quart of vodka daily and facing theft charges that would land him in prison. He said he should not have been representing a client.

On appeal, a Superior Court judge ruled that during the penalty phase of Mr. Holsey’s trial, his lawyer had failed to effectively present evidence that might have forestalled a death penalty, including facts about Mr. Holsey’s history and his intellectual deficit. That judge called for a new sentencing trial.  But the Georgia Supreme Court reversed the decision, ruling that the jury had heard enough evidence about mitigating factors during the initial trial....

That Mr. Holsey had received ineffective counsel seemed clear, said John H. Blume, a professor and director of the death penalty project at the Cornell Law School. “But the quality of representation in capital cases is often so low,” he said, “that it’s difficult to shock the courts.”

He and other legal experts said a more promising tack — if not for Mr. Holsey, then for defendants in the future — is the challenge to Georgia’s standard of proof for intellectual disability.  The state requires defendants to prove that they are intellectually disabled “beyond a reasonable doubt.”  For those near the borderline, often described as an I.Q. around 70, that standard is nearly impossible to meet.  Many legal experts think it violates a Supreme Court ruling last May that said states cannot create “an unacceptable risk that persons with intellectual disability will be executed.”

In other states, either a “preponderance of evidence” or “clear and convincing evidence” is necessary to establish disability, said Eric M. Freedman, a law professor and death penalty expert at Hofstra University. Both are less stringent standards than the one used in Georgia.

In a landmark decision in 2002, the United States Supreme Court barred the execution of mentally disabled people, but largely left it to the states to set the criteria. In its decision in May, the court added new conditions, ruling in Hall v. Florida that the state could not rely on a simple I.Q. cutoff but rather must take a broad look at a person’s ability to function.

Mr. Holsey’s I.Q. has been measured at around 70.... The state, he said, had argued that because he could drive a car and had a girlfriend, Mr. Holsey could not be disabled....

Constitutional scholars say it is most likely that at some point either the Georgia Supreme Court or the federal Supreme Court will strike down the standard as an unreasonable outlier. “You’ve got a national constitutional rule that people with intellectual disability shouldn’t be executed, but it’s being applied differently in different states,” Mr. Blume of Cornell said

December 9, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Monday, December 8, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?".  The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.

I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:

Not to worry -- this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.

Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.

Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.

But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.

The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise.  The liberal bubble is big. It's also, for the most part, impenetrable.

And it's one more thing -- wrong.

If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones.  One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....

[T]there are some prominent people in the Republican Party on board with "sentencing reform."  But the great majority of Republicans, and the center of the Party, are not being fooled.  The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....

So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform."  Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.

There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.

Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party).  Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey."  Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.

But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform.  Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years.  And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.

Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons.  According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws.  But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.

(Notably, these generational and demographic realities concerning sentencing reform are not only a  GOP story.  Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform.  But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)

Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works."   Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working.  That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.  

Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties.  But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo.  Whether and how these competing groups views as to  "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950. 

December 8, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Notable new resources from DOJ and DOE to improve education in juve justice systems

I am pleased and intrigued to see this new DOJ press release titled "Attorney General Holder, Secretary Duncan, Announce Guidance Package on Providing Quality Education Services to America's Confined Youth." Here are notable excerpts from the press release which, inter alia, links to a whole array of additional related resources:

Attorney General Eric Holder and Secretary of Education Arne Duncan today announced a Correctional Education Guidance Package aimed at helping states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day....

“In this great country, all children deserve equal access to a high-quality public education — and this is no less true for children in the juvenile justice system,” said Attorney General Holder.   “At the Department of Justice, we are working tirelessly to ensure that every young person who's involved in the system retains access to the quality education they need to rebuild their lives and reclaim their futures.   We hope and expect this guidance will offer a roadmap for enhancing these young people's academic and social skills, and reducing the likelihood of recidivism.”

“Students in juvenile justice facilities need a world-class education and rigorous coursework to help them successfully transition out of facilities and back into the classroom or the workforce becoming productive members of society,” said Secretary Duncan.   “Young people should not fall off track for life just because they come into contact with the justice system.”...

“High-quality correctional education is thus one of the most effective crime-prevention tools we have,” Attorney General Holder and Secretary Duncan wrote in a dear colleague letter to chief state school officers and state attorneys general.  “High-quality Correctional education – including postsecondary correctional education, which can be supported by Federal Pell Grants — has been shown to measurably reduce re-incarceration rates. Less crime means not only lower prison costs — it also means safer communities.”...

Providing young people in confinement with access to the education they need is one of the most powerful and cost-effectives strategies for ensuring they become productive members of their communities.  The average cost to confine a juvenile is $88,000 per year — and a recent study showed that about 55 percent of youth were rearrested within 12 months of release.  Inmates of all ages are half as likely to go back to jail if they participate in higher education — even compared to inmates with similar histories.

December 8, 2014 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Are prosecutors above the law?"

The title of this post is the title of this lengthy new commentary at Daily Kos.  It starts and ends this way: 

There is something terribly wrong with a justice system that allows an inordinate amount of power to reside in the hands of one office that not only has no real accountability or oversight, but is insulated from the consequences of its actions by court-granted immunity. And no, I am not talking about Supreme Court justices, but about prosecuting attorneys.

The prosecuting attorney — whether local, state, or federal — has an incredible amount of authority and discretion in how to exercise that authority.  The prosecuting attorney decides how many, and what kind of charges are brought in criminal prosecutions. The prosecuting attorney has the ability to directly charge a crime, or to use a grand jury for more serious crimes, to indict a defendant.  The prosecuting attorney has the authority to offer plea bargains.

And while there should be some type of accountability other than election, and while the fiction exists that prosecuting attorneys could be disbarred, in reality, they face little punishment for abusing their discretion or authority....

Prosecutors do need some level of immunity in order to properly perform their duties. And they require prosecutorial discretion in order to keep the wheels of justice turning. We have seen how efforts to restrict judicial discretion resulted in mandatory minimum sentences, removing a judge's discretion in sentencing entirely.  (Now it is the prosecutor who determines the sentence by exercising his discretion in deciding what charges an offender will face.)  But there does need to be some limit, some oversight to a prosecutor's office.

If grand juries only exist to give the result the prosecutor desires, what is the point of using them?  Initially, they were to allow citizens some input into the system, but as that system has become more complicated and more laws have been enacted to criminalize behavior, most citizens do not have the knowledge necessary to fulfill that role.  Since all of their actions are taken in secret, and since they are never allowed to reveal what happened within the jury room, it is impossible to determine if they are working the way they were intended.

The most powerful office in the justice system, whose decisions carry the greatest impact and consequence, is still occupied by human beings, subject to all of the normal human failings.  In order to ensure that the power is used properly, sunshine, oversight, and accountability must become part of the system.

December 8, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Sunday, December 7, 2014

Two astute commentaries about California's emerging Prop 47 issues

0Two local California paper have two distinct commentaries about Proposition 47 and its aftermath. Both are worth reading, and here are links and excerpts from the start and end of each piece:

Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....

It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.

Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":

The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.

With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.

The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....

In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.

It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.

But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.

December 7, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Former basketball star taking (wild?) shot at fighting loss calculation in federal fraud sentencing

TateThis notable article from Connecticut reports that a notable fraud defendant is going to be representing himself as he agrues against how loss is being calculated and used against him in his upcoming federal sentencing.  Here are some of the interesting details:

Ever since being convicted on four felony counts in a real estate scheme, former University of Connecticut basketball star Tate George has been complaining about his legal representation.  He criticized his trial attorney, saying he didn't listen to requests for calling witnesses and other strategies.

After dropping his first attorney, George briefly switched to another, who is also out of the picture.  Now George has received permission from a federal judge to represent himself at his sentencing.

A first-round NBA draft pick, George has more basketball experience than legal experience.  He is best known for hitting "The Shot" at the Meadowlands arena in New Jersey in the final second to defeat Clemson in the NCAA playoffs in 1990, one of the most stunning victories in UConn basketball history.

Before his request was granted this week, federal prosecutors warned George in court papers about "the dangers and perils of self-representation."  They quoted the saying that "he who represents himself has a fool for a client."  Prosecutors told George, "There are many complex rules in court, and that most non-lawyers, including yourself, cannot know all of these rules."

But George, 46, has gone his own way before.  After expressing dissatisfaction with his trial attorney, George began sending letters directly from his prison cell to the federal judge instead of sending them through his attorney.  In at least five letters to U.S. District Court Judge Mary L. Cooper in Trenton, George proclaimed his innocence.

"I understand that my life has no value to all those who have gone about defaming my name, but I beg to differ and will continue to fight to prove my innocence," George wrote to the judge.  "Again, for the record, even though the government refuses to want to hear or admit to the truth above their lies to make me look guilty, there are no losses to report at this time, which means there is no crime or victims.  PERIOD! AS I HAVE SAID, BUT NO ONE SEEMS TO BE LISTENING, THERE ARE MONIES OWED YES, BUT NOT LOSSED!"

As part of his legal strategy, George is saying that the $250,000 investment by former UConn basketball star and NBA player Charlie Villanueva that was never repaid should not be counted as a financial loss.  Since he has promised to repay Villaneuva, George says there is no victim and no loss....  

George has said he was upset that his attorney, David E. Schafer, a federal public defender, said that investors in his case had lost $833,000 when George maintained that the actual loss was zero.  Federal prosecutors say the investors lost more than $2.5 million. At one point, a prosecutor described George as a "baby Madoff," referring to the massive Ponzi scheme operated by now-imprisoned New York City financier Bernie Madoff in which investors lost billions of dollars in a long-running scheme.

George was convicted in September 2013 and could face as many as nine years in prison when he is sentenced. Although he was convicted more than a year ago, his sentencing has been postponed multiple times.

December 7, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Blanket prohibition of tobacco now officially the law of the federal prisons land

As reported in this US News article, the "Federal Bureau of Prisons is officially banning smoking and possession of tobacco in any form by prison inmates."  Here is more:

The prohibition takes effect 30 days after publication of a final regulatory rule Monday in the Federal Register.  Prison guards still will be allowed to possess tobacco, but inmates will be permitted to smoke only for religious purposes.

“I’m a little surprised to be getting calls about this,” says Bureau of Prisons spokesman Ed Ross. Tobacco use by inmates, he says, is already banned in practice due to a 2006 policy taking tobacco products off the shelves of prison commissaries.  Cigarettes became contraband when commissaries stopped selling them, despite regulations technically allowing for outdoor smoking.

“If an inmate is found to be in possession of tobacco they are subject to discipline,” possibly including loss of phone or visitation privileges, Ross says. “I think it’s just formalizing the policy that’s in place.”...

Prisoners are historically more likely to smoke than the general public. Before the 2006 policy change, an estimated 60 to 80 percent of prison and jail inmates were smokers — far higher than the national average — alarming public health advocates who noted poor ventilation at facilities exposed nonsmokers to significant amounts of secondhand smoke.

But there's a flip side to banning tobacco.  The New York Daily News reported in 2013 tobacco prohibitions led to a surge in black market prices, with individual cigarettes selling for an average of $30 on New York City’s Rikers Island.  The Daily Beast reported the restrictions created a “cash cow” for prison gangs like the Aryan Brotherhood.

The new rule applies only to the 212,438 inmates housed in federal facilities. Many state and local jails, however, have independently banned tobacco use.

December 7, 2014 in Prisons and prisoners | Permalink | Comments (7) | TrackBack (0)

Friday, December 5, 2014

SCOTUS takes up new capital procedures case from Louisiana

As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure.  Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:

In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death.  In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.

Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds.  Brumfield was charged with killing the officer and wounding the store manager.

In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty.  The petition contended that he was entitled to a separate hearing on that question.  His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.

UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."

December 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

District Judge pushes federal prosecutors to back off extreme trial penalty sentence

As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:

Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.

Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday.  But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.

Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty.  "He won't look with pride on what you're doing here today," Sullivan said....

In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks.  Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.

In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.

They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.

After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.

December 5, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Thursday, December 4, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 in Booker in the Circuits, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

Nevada completes detailed accounting of costs of death penalty cases

As reported in this local article, headlined "High cost of death penalty could affect its future in Nevada," the Silver State's audits have recently completed a detailed report on how much taxpayer gold is typically spent in capital cases. Here are the details:

Nevada’s criminal justice system spends nearly twice as much handling death penalty cases compared with murder cases where capital punishment isn’t sought, according to a report released Tuesday by state auditors.

The state-mandated study, which surveyed data from 27 state and local agencies, gives ammunition to death penalty opponents who have failed to defeat public support for capital punishment using moral objections. It is, by far, Nevada’s most comprehensive study on the controversial practice and will serve as a law makers' guide for years to come....

Auditors assembled the 105-page report by sampling data from 28 cases, calculating costs associated with legal counsel — both defense and prosecution — as well as for money spent on court proceedings and incarceration.

Here are three highlights from the document's release:

From a suspect’s arrest through his or her final days behind bars, officials spend at least $1.3 million on murder cases where convicts are sentenced to death but not executed — that’s $532,000 more compared with murder cases where capital punishment wasn't sought. Litigation costs, including the trial and appeal phase, averaged about three times more for death penalty versus non-death penalty cases. And expenses are similar for all death penalty cases, regardless of whether a sentence is given or not.

Among all prison inmates convicted of murder, costs are highest for people on death row. There were 83 people sentenced to death in Nevada as of late last year. Prosecutors could have potentially saved an estimated $44 million by never pursuing corporal punishment in those cases....

Nevada's per capita death penalty rate ranks fourth in the country and tops Texas and California, according to the nonprofit Death Penalty Information Center. But the state's death chamber is seldom used, and only a dozen people have been executed since the U.S. Supreme Court reinstated the capital punishment in 1976. Of those, only one died against his will. The last execution in Nevada happened more than eight years ago.

It’s likely the study underestimated the cost of death penalty cases because of underreporting from government agencies....

The study’s findings fall in line with previous research examining the financial burden of capital murder cases — a study released this year by the Kansas Judicial Council found that defending a death penalty case costs as much as four times more than other murder cases.

Critics of the practice hope Nevada’s study will bolster efforts to erode support for capital punishment. “A lot of people who favor the death penalty think it’s cheaper,” said Las Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's meeting from Las Vegas. “Once people understand and they’re informed, maybe things will change.”

The full 100+ page Nevada legislative audit document released this week, which carries the exciting title "Fiscal Costs of the Death Penalty," can be accessed at this link.

December 4, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Wednesday, December 3, 2014

New report from Center for American Progress examines barriers for those with criminal records

Images (4)The Center for American Progress this week released this notable new report titled "One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records." Here is an excerpts from the report's introduction:

Between 70 million and 100 million Americans — or as many as one in three — have a criminal record. Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction.  Nonetheless, because of the rise of technology and the ease of accessing data via the Internet — in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society.  This has broad implications — not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.

Today, a criminal record serves as both a direct cause and consequence of poverty.  It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well.  It is a consequence due to the growing criminalization of poverty and homelessness.  One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society....

Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy.  Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product....

The lifelong consequences of having a criminal record — and the stigma that accompanies one — stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.

Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes — making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility.  The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class.  This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole....

This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.

Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidencebased approaches to public safety.  Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance.  Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.

December 3, 2014 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1) | TrackBack (0)

Some notable new postings at the Collateral Consequences Resource Center

Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars.  But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora.  And these recent postings seemed especially worth highlighting:

December 3, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit issues stay keepingTexas from executing mentally ill condemned murderer

As reported in this CNN piece, the Fifth Circuit today "stayed the execution of Texas death row inmate Scott Panetti, who was scheduled to be put to death at 6 p.m. Wednesday." Here is more:

Panetti's case has sparked debate for years over whether the state can execute someone who is severely mentally ill.  During his trial for the 1992 slayings of his mother- and father-in-law, Panetti represented himself — dressed in a purple cowboy outfit — and called Jesus, John F. Kennedy and the Pope to the stand.  The now-56-year-old was convicted of shooting them to death at close range, in front of his wife and daughter.

Panetti has suffered from schizophrenia for 30 years, his lawyers say, and he was hospitalized for mental illness numerous times before the murders.  Though Panetti received initial evaluations of his mental health, his state of mind has deteriorated, his lawyer Kathryn Kase said.  She noted in a letter to Texas Gov. Rick Perry that Panetti hasn't received a mental evaluation in seven years.  Kase asked that Perry grant a 30-day stay to the scheduled execution so that that an evaluation can be done to determine if he understands his punishment....

"If he's executed there should be a sense of outrage," said Ron Honberg, legal director for the National Alliance on Mental Illness.  "There's no question he's mentally ill.  If this happens, the message would be — 'we just don't care.'

"To execute him flies in the face of even supporters of the death penalty who say that it should be carried out with inmates who are the worst of the worst," Honberg continued.  "It would be much more compassionate and practical to spend money treating inmates with mental illness rather than execute this man."

The Texas Board of Pardons and Parole voted 7-0 to deny clemency in Panetti's case.  There is still an appeal before the U.S. Supreme Court, in addition to the appeal the U.S. Fifth Circuit Court of Appeals granted Wednesday.

December 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Praise for Texas justice embracing "Right on Crime" from across the pond

This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:

Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was.  Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do.  When they don't we punish them, but then we welcome them back and expect good behaviour again.  It's not naive, it's just clear.

For years that straightforward moral outlook translated into a tough criminal justice system.  As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket.  Texas, for instance, has half the population of the UK but twice its number of prisoners.

Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.

What Madden found was that too many low-level offenders were spending too long in prison, and not reforming.  On the contrary, they were getting worse inside and not getting the help they needed on release.  The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.  

But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab.   Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices.  Here, they believe, moral clarity and generosity are what's needed.

Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release.  Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.

The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen.  Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....

Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community.  This is the magic sauce of Right on Crime.

Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons.  I visited one by the Trinity River in Dallas, now ready for sale and redevelopment.  They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.

This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours.  It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.

December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

After numerous local, state and federal reforms, crime hits new record lows in biggest US city

Images (3)This new New York Times article reports on more good news about crime rates from the Big Apple.  Here are the encouraging details:

Mayor Bill de Blasio said on Tuesday that a city his opponents once said would grow more dangerous under his watch had, in fact, become even safer.

Robberies, considered the most telling indicator of street crime, are down 14 percent across New York City from last year.  Grand larcenies — including the thefts of Apple devices that officials said drove an overall crime increase two years ago — are also down, by roughly 3 percent.  And after a record­-low 335 homicides in 2013, the city has seen 290 killings in the first 11 months of this year, a number unheard-­of two decades ago.

“When I came into this job, people always talked about last year — last year was an amazing year in this city in terms of bringing down crime,” Mr. de Blasio said.  “We saw what was possible.  The city’s crime rate continues to go down.”

Even shootings, which had increased by more than 10 percent earlier this year, have receded amid a push by the Police Department to stamp out troublesome pockets of gun violence.  There were just over 1,000 shootings in the first 11 months of this year, about a 4 percent increase over last year....

For Mr. de Blasio and his police commissioner, William J. Bratton, the numbers provided a kind of cushion for the criminal justice and policing reforms that both men are putting into place.

Officers will this week begin a pilot program of wearing body cameras in three police commands, Mr. Bratton said on Tuesday, and a wholesale retraining of the department’s patrol force is also starting.  A new marijuana policy aimed at reducing low­-level arrests, which was announced in November, has already resulted in a 61.2 percent decline in arrests in its first two full weeks....

The decline in the city’s crime rate, while deeper in many categories than other cities, mirrors a nationwide downward trend from heights of violent crime in the 1990s.  How much any one mayor or one police commissioner has control over crime has remained a subject of debate.  Indeed, Mr. de Blasio pointed to 20 years of “momentum” that he inherited, referring to an “arc of continuous progress across different mayors, different commissioners.”  He expressed pride in the performance of the Police Department over the first 11 months of this year, and declined to describe the continued decline as vindication of his reform-­minded policies.  Others were more ready to do so.

“Bravo!” wrote Joseph J. Lhota on Twitter, who as the Republican candidate for mayor last year ran ads predicting a return to the crime-­plagued streets of the early 1990s if Mr. de Blasio were elected.

With a month still to go before the end of the year, the favorable crime numbers appeared to render a verdict on at least one question: Would a vast decline in the number of recorded stop­-and-­frisk encounters create an opening for violence to return?  So far, Mr. de Blasio and Mr. Bratton said, the answer has been no Mr. Bratton said that by the end of the year there would be fewer than 50,000 such stops, down from a high of over 685,000 in 2011.  That sharp decline, like crime over all, began well before Mr. de Blasio took office and has continued.

As the title of this post highlights, this great news on crime rates is also great news for those eager to encourage continued reform of state and federal criminal justice policies and practices. In addition to recent stop-and-frisk and marijuana policing reforms, New York five years ago reformed its draconian Rockefeller drug laws and the state's prison population has also been reduced significantly in recent years. And, of course, if many recent federal sentencing reforms were to have any significant impact on crime rates, we reasonably should expect New York City to be a window on this national story.

Critically, I am not trying to assert or even suggest that recent crime reductions are the result of all the criminal justice reforms of recent years. But I do mean to highlight and stress that it seems freedom has been significantly increased in the Big Apple without any apparent harm to public safety (and despite lots of folks claiming that criminal justice reforms would surely result in more crime). To paraphrase Old Blue Eyes, not only should everyone start spreading this news, but we should conclude that if we can make criminal justice reform work there, we can make it work just about everywhere.

December 3, 2014 in National and State Crime Data, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 2, 2014

"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements"

The title of this post is the title of this new article authored by Kevin Bennardo and published in the online complement to the Washington and Lee Law Review. (The Erwin case referenced in the title is a recent Third Circuit ruling discussed in this blog post titled "Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver.")  Here is the abstract of this new article:

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty.  A defendant’s breach of one should not affect the Government’s obligation to perform under the other.  All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance.  This intertwining undermines sentencing policy as set forth in the federal sentencing statute.  Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

December 2, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield

The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context.  Here is how the preview starts and ends: 

One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum.  [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another.  [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States  — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....

At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence.  Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case.  On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die.  And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.

UPDATE: Via SCOTUSblog, I see that the transcript in Whitfield v. United States is now avaiable here

December 2, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

"Actually, Blacks Do Care About Black Crime"

The title of this post is the headline of this notable new Slate commentary by Jamelle Bouie. Here are excerpts: 

In cities across the country, crowds are protesting police violence against unarmed black men. Demonstrators want justice, not just for Michael Brown, but for Eric Garner, John Crawford, and Tamir Rice, the 12-year-old boy killed by Cleveland police last month.  To that end, they’ve stopped parades and blocked highways in an effort to show the value of a black life.

But to some critics, this outrage is misplaced.  “Somebody has to tell me, something somebody needs to tell me why Michael Brown has been chosen as the face of black oppression,” said MSNBC’s Joe Scarborough on Monday morning, during his daily show.  His co-panelist, Donny Deutsch, agreed. “It’s not a black-white situation. It’s a thug-police officer situation,” he said. “Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?” wonders Deroy Murdock in a column for National Review. “One can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter,” writes Murdock, who doesn’t note that — in those cases — perpetrators are usually caught and convicted.  And then there’s former New York City mayor Rudy Giuliani, who—after President Obama spoke on Ferguson — told CNN that “[Obama] also should have spent 15 minutes on training the [black] community to stop killing each other.”

This basic question — “Where is all the outrage over black-on-black crime?” — is raised whenever black Americans protest a police shooting, or any other violence against unarmed black men.  “Nationally, nearly half of all murder victims are black,” wrote conservative commentator Juan Williams after Trayvon Martin was killed in 2012, “And the overwhelming majority of those black people are killed by other black people. Where is the march for them?”...

[L]et’s look directly at the question raised by Murdock, Giuliani, and Williams — “Do black people care about crime in their neighborhoods?” They treat it as a rhetorical concern — a prelude to broad statements about black American concerns. But we should treat it as an empirical question — an issue we can resolve with some time and research.

This isn’t as easy as it sounds. While blacks are more likely to face criminal victimization than other groups, that doesn’t tell us how black Americans feel about crime and where it ranks as a problem for their communities.  For that, we have to look to public opinion surveys and other research. And while it’s hard to draw a conclusive answer, all the available evidence points to one answer: Yes, black people are concerned with crime in their neighborhoods....

[W]hile black neighborhoods are far less dangerous than they were a generational ago, black people are still concerned with victimization.  Take this 2014 report from the Sentencing Project on perceptions of crime and support for punitive policies.  Using data from the University of Albany’s Sourcebook of Criminal Justice Statistics, the Sentencing Project found that — as a group — racial minorities are more likely than whites to report an “area within a mile of their home where they would be afraid to walk alone at night” (41 percent to 30 percent) and more likely to say there are certain neighborhoods they avoid, which they otherwise might want to go to (54 percent to 46 percent). And among black Americans in particular — circa 2003 — “43 percent said they were ‘very satisfied’ about their physical safety in contrast to 59 percent of Hispanics, and 63 percent of whites.”

More recent data shows a similar picture. In 2012, Gallup found that, compared to the general public, blacks were more worried about “being attacked” while driving their car, more worried about being the victim of a hate crime, and — most salient for our discussion — more worried about “being murdered.” Likewise, according to a 2013 survey for NPR, the Robert Wood Johnson Foundation, and the Harvard School of Public Health, 26 percent of black Americans rank crime as the most important issue facing the area they live. That’s higher than the ranking for the economy (16 percent), housing (4 percent), the environment (7 percent), social issues (4 percent), and infrastructure (7 percent). And in a recently published survey for Ebony magazine and the W.K. Kellogg Foundation, 13 percent rank violent crime as a top issue — which sits in the middle of the rankings — and 48 percent say that the black community is losing ground on the issue.

Finally, Atlantic Media’s “State of the City” poll — published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime.  Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police.  That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods.  And while “urban minority” includes a range of different groups, there’s a good chance this is representative of black opinion in some areas of high crime and victimization, given the large black presence in many American cities.

It’s important to note that this concern with crime doesn’t translate to support for punitive policies. Despite high victimization rates, black Americans are consistently opposed to harsh punishments and greater incarceration.  Instead, they support more education and job training.

Beyond the data, there’s the anecdotal evidence. And in short, it’s easy to find examples of marches and demonstrations against crime. In the last four years, blacks have held community protests against violence in Chicago; New York; Newark, New Jersey; Pittsburgh; Saginaw, Michigan; and Gary, Indiana. Indeed, there’s a whole catalog of movies, albums, and sermons from a generation of directors, musicians, and religious leaders, each urging peace and order. You may not have noticed black protests against crime and violence, but that doesn’t mean they haven’t happened. Black Americans — like everyone else — are concerned with what happens in their communities, and at a certain point, pundits who insist otherwise are either lying or willfully ignorant....

To that point, it’s worth noting the extent to which “what about black-on-black crime” is an evasion, an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law.

December 2, 2014 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack (0)

Monday, December 1, 2014

Justices struggling in Elonis argument with free speech and Facebook threats

There are now lots of old and new media sources reporting on today's Supreme Court oral argument in Elonis v. United States, the case considering the reach and application of a federal law prohibiting making threats via the Internet.  The folks at SCOTUSblog have two terrific review posts here and here, and How Appealing collects lots and lots of links to other coverage here and here.

All these media reports suggest that the Justices were struggling in various ways to figure out how best to balance free speech concerns and legitimate interests in punishing "true threats" made on-line.  And folks can read up on these struggles in full via the transcript in Elonis v. United States which is available at this link.

December 1, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Making the case (again) for fixing the federal clemency process

Over the holiday weekend, Professors Rachel Barkow and Mark Osler renewed their call for reform of the federal clemency process through this Washington Post opinion piece.  Here are excerpts from the start and end of the piece:

In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.

Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot....

What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties....

It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.

With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.

Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.

Just a few of many recent and older posts concerning federal clemency practices:

December 1, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

"What Death Penalty Opponents Don’t Get"

The title of this post is the headline of this notable new commentary by James Ridgeway and Jean Casella now appearing at both The Marshall Project and The Huffington Post. Here are excerpts:

Opponents of the death penalty have had many occasions to celebrate in the new millennium.  Four states have abolished the practice in the past five years, while others have legally or effectively set moratoriums on executions.  Support for capital punishment in the United States is at its lowest point in four decades, and seems likely to fall further as the number of exonerations and gruesomely botched executions continues to grow.

But at what cost have these concessions been won?  The NAACP Legal Defense and Educational Fund's latest “Death Row U.S.A.” report found 3,049 individuals awaiting execution in the United States.  According to the Sentencing Project, at last count nearly 50,000 people were serving sentences of life without the possibility of parole — a number that has more than tripled since the early 1990s.  Over 159,000 were serving life sentences — many of them ... with minimums so long that they might as well be doing life without parole, too.

In many states, the expansion — and the very existence — of life without parole sentences can be directly linked to the struggle to end capital punishment.  Death penalty opponents often accept — and even zealously promote — life without parole as a preferable option, in the process becoming champions of a punishment that is nearly unknown in the rest of the developing world...

Complicating matters is the fact that life without parole rarely takes its place as simply a one-for-one alternative to the death penalty.  In New York State, for example, life without parole did not exist before the state’s brief reinstitution of capital punishment from 1995 to 2004.  During this period, there were never more than half a dozen men on New York’s death row, and no executions took place.  Yet today, nearly 250 people are doing life without parole in New York, and more than 1 in 6 of the state’s prisoners is serving a life sentence.

Connecticut, in abolishing its death penalty in 2012, legislated a punishment even more harsh than simple life without parole.  Thereafter, a new law decreed, those convicted of “murder with special circumstances” would be condemned to live out their life without parole sentences in solitary confinement. The measure was reportedly backed as a way to win enough support for the repeal bill.

Though the requirement that life/LWOP sentences be served in solitary confinement is codified into law only in Connecticut, it exists in practice throughout the nation. An unknown number of lifers have, like [New York lifer] William Blake, been placed in permanent or indefinite solitary confinement by prison officials, without benefit of any kind of due process.  So have most of the individuals on the nation’s death rows, including the supposedly fortunate ones who live in states that have instituted moratoriums, and are therefore unlikely to ever face execution.

Research has confirmed that even brief periods in solitary alter brain chemistry and produce psychiatric symptoms ranging from extreme depression to active psychosis. Some prisoners who have spent longer amounts of time in isolation describe it as a condition that slowly degrades both their humanity and sanity, turning them into blind animals given to interminable pacing, smearing their cells with feces, or engaging in self-mutilation....

William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty 27 years ago had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake — and the American public — are not forced to choose among such monstrous alternatives.  In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture.

Long-time readers know that I largely share the perspective of these commentators. I find compelling the assertion that some (many?) LWOP sentences can often involve a fate worse than death, and I find moving the concern that too much of modern opposition to "state-sponsored death" in the United States tends to advocate, both formally and functionally, for a kind of "state-sanctioned torture."

December 1, 2014 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (8) | TrackBack (0)

Justices issue cert statements expressing concerns about procedural issues in criminal appeals

Today's order list from the Supreme Court, in addition to including a few notable denials of cert in criminal cases as noted by Lyle Denniston in this new SCOTUSblog post, concluded with two notable statements by a few Justices explaining why they voted to deny certiorari review in a couple of criminal cases even though they were troubled by procedural issues arising in efforts by defendants to raise various appellate issues.

This statement in Joseph v. United States should be of special interest to federal practitioners.  In it, Justices Kennedy and Sotomayor indicated they voted to grant certiorari, while Justice Kagan (joined by Justices Ginsburg and Breyer) explained how the Eleventh Circuit's application of rules about raising new claims in reply brief suggested that  "criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between the Eleventh Circuit and every other court of appeals."   Justice Kagan then, not too subtly, suggested that she was holding on granting cert in order to give the Eleventh Circuit a chance in the first instance to " clean up intra-circuit divisions" before SCOTUS took up the matter.  

This statement in Redd v. Chappell should be of special interest to capital punishment followers, especially in California.  In it, Justice Sotomayor (joined by Justice Breyer) laments that nearly two decades "after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings — counsel to which he is entitled as a matter of state law." Justice Sotomayor explains she is did not vote to grant cert in part because "the State represents that state habeas counsel will be appointed for petitioner in due course.” When counsel is appointed is obviously real important to this petitioner; even more important to lots of others is whether this statement is something of a signal concerning the on-going federal court litigation in Jones v. Chappell over the constitutional problems posed by seemingly arbitrary delays in appellate review for condemned California killer.

December 1, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Sunday, November 30, 2014

Previewing SCOTUS argument in Facebook threat case, Elonis v. United States

Images (2)To kick off December, the Supreme Court will hear oral argument in Elonis v. United States to consider application of the federal law prohibiting making threats using the Internet.  Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Social media as a crime scene," and here are excerpts:

There is a way for the Court to decide the case of Elonis v. United States without sorting out just how far First Amendment protection extends to private expression on the Internet. In agreeing to hear the case, the Court added a question about the meaning of the federal law at issue.  If it narrows the reach of that law, it may not need to say anything directly about the First Amendment, although it probably would reduce the law’s scope if it felt that was necessary to avoid having to rule on the constitutional question.

In this case, a thirty-one-year-old man, Anthony Douglas Elonis, who lives in the small Pennsylvania community of Lower Saucon Township, was convicted for postings on Facebook four years ago that prosecutors treated as actual threats of violence. The jury agreed, leading to a guilty verdict and a forty-four-month prison sentence. His messaging came after his wife had left him and he was fired from his job at an amusement park because of one of his postings....

His conviction came under a federal law that makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”

The Supreme Court, in fact, has already made at least partly clear — in decisions that go back to 1969 — that the First Amendment does not permit the government to punish for all threats made in communications in the media or in the public square. It has confined prosecution to “true threats,” and has stressed that the law against threatening someone does not apply at all to “political hyperbole” or to “vehement, caustic, or unpleasantly sharp attacks” that cannot be interpreted as “true threats.”

And, in a decision in 2003, the Court attempted to say just what a “true threat” is, legally speaking. It did so in interpreting another federal law that made it a crime to burn a cross with the intent of intimidating someone. That law said any cross-burning, by the act itself, would be proof of an intent to intimidate. A plurality of the Court said that the act alone was not sufficient. “‘True threats,'” that opinion said, “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

In [Elonis], the Supreme Court has the task of clarifying what a person “means to communicate” when speaking in terms of violence on the Internet, and also what constitutes “an intent” to commit the crime of making an illegal threat.

Basically, this case presents the Court with two choices — first, to look at the issue of intent from a subjective perspective, focusing on the speaker, or to look at it from an objective view, focusing on both the speaker and on a hypothetical “reasonable person” exposed to the message.

Anthony Elonis and his supporters argue that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” If that is the test, a jury would have to make its own assessment of what an Internet user like Elonis did have in mind, examining the specific words used and their context.

The federal government and its supporters, however, argue that Elonis’s statements were judged — and should have been judged — by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed?...

The effect of the decision that does emerge almost certainly would be felt in the very public space of such Internet sites as Facebook. For that reason, Elonis is running interference for the Internet as a whole, and especially for those sites where expression is robust, indeed. Much of the discussion in the case, in fact, is on the potential impact on the very provocative postings of rap music, and its fairly common idiom of violence.

November 30, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack (0)

Growing awareness of the limited efficacy of local sex offender residency restrictions

This new Wall Street Journal article highlights the new awareness of enduring problems with sex offender residency restrictions.  The lengthy piece is headlined "Cities and Towns Scaling Back Limits on Sex Offenders: Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track," and here are excerpts:

When Palm Beach County, Fla., was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.

The county’s commissioners — prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless — voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children. “We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.

In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana. Mr. Vann, who is suspected of killing several others, pleaded not guilty.

Now, a growing number of communities are rejecting or scaling back such limits — out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track....

A 2013 Justice Department study that examined Michigan’s and Missouri’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.

About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio. In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather....

Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.

David Prater, district attorney of the county that encompasses Oklahoma City, said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said....

Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere, Wis., a town of 23,000 south of Green Bay, tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge. “You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.”

November 30, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Noting some reasons the number of US executions in 2014 are so low

This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:

In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton.  His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound.  The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.

The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014.  So far this year, America has seen the fewest executions  — 32 — in 20 years....

A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana.  Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.

The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.

November 30, 2014 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms | Permalink | Comments (2) | TrackBack (0)

"The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama"

The title of this post is the title of this notable new paper on SSRN authored by Jason Zarrow and William Milliken. Here is the abstract:

Teague v. Lane established a general bar on the retroactive application of criminal rules in habeas proceedings.  Substantive rules, however, are not subject to that bar.  In this Article, we consider whether a habeas petitioner may retroactively invoke a substantive rule notwithstanding 28 U.S.C. § 2254(d)(1), a provision of the Anti-Terrorism and Effective Death Penalty Act that precludes federal courts from granting habeas relief to state prisoners unless the state-court adjudication was contrary to “clearly established Federal law.”

We answer this question through the lens of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing schemes mandating life-without-parole sentences for juveniles are unconstitutional.  By tracing the Court’s jurisprudence on substantive rules to its historical roots, we conclude that Miller, while not substantive in toto, contains a substantive component, and that § 2254(d)(1) does not bar habeas petitioners from relying on substantive rules announced after their convictions become final.

November 30, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Saturday, November 29, 2014

Is Big Pharma already a bigger threat to kids than Big Marijuana would be?

The question in the title of this post is prompted by this interesting new piece up at The Crime Report headlined "The RX Alliance That Drugs Our Kids."  Here is how the piece starts:

Olivia Hernandez always trusted the doctors who scribbled out prescription after prescription for the heavy-duty psychiatric drugs that clouded her teenage years in foster care. Now, she feels “betrayed.”

Three of her former doctors are among a chosen group of California foster care prescribers who received gifts and payments for meals, travel, speaking and industry-sponsored research from the world’s biggest pharmaceutical companies.

A three-part investigation by the San Jose Mercury News has found that drugmakers, anxious to expand the market for some of their most profitable products, spent more than $14 million from 2010 to 2013 to woo the California doctors who treat this captive and fragile audience of patients at taxpayers’ expense.

Drugmakers distribute their cash to all manner of doctors, but the investigation found that they paid the state’s foster care prescribers on average more than double what they gave to the typical California physician. The connection raises concerns that Hernandez and many other unsuspecting youth have been caught in the middle of a big-money alliance that could be helping to drive the rampant use of psychiatric medications in the state’s foster care system.

I am sympathetic to those advocates concerned that a legalized marijuana industry will end up being eager to market pot products to young users. But, as this article highlights, Big Pharma not only markets drug products to kids, but it has a huge group of licensed drug dealers (doctors) helping them peddle drug products.

November 29, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)