Wednesday, March 9, 2016

US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"

I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:

Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.

The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.  

The Commission also found that:

  • Most offenders who recidivated did so within the first two years of the follow up period;
  • Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
  • An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
  • An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).

Download the full report.

I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.

March 9, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?

JudgeKJacksonNewProfileThe question in the title of this post is my genuine and sincere effort to try to feel better about comments over at Crime & Consequences and other commentary from conservative pundits about my favorite SCOTUS short-lister, US District Judge Ketanji Brown Jackson.  For the record, as I have previously noted, my affinity for Judge Brown Jackson is surely influenced by her prior service as a federal public defender and as a Vice-Chair of the US Sentencing Commission (during which time I had the opportunity to once dine with her at a sentencing conference).  That personal bias notwithstanding, everything I can find "on paper" about Judge Brown Jackson suggests to me she is an intellectual super-star, not an "intellectual lightweight" or a dim light as she has been described by some conservative commentators.

The "on paper" credentials to which I refer are detailed here, and here is my own brief summary:  Judge Brown Jackson graduated magna cum laude from Harvard College and cum laude (and was on the law review) at Harvard Law School.  She clerked for two highly regarded federal judges at the district (Judge Saris) and circuit (Judge Selya) courts in Boston and then for Supreme Court Justice Breyer. She thereafter worked in prominent and challenging positions in public practice (as a federal public defender), in private practice (at the firm Morrison & Foerster) and in the most important judicial-branch government agency (as Vice-Chair of USSC).  She has now been a federal district judge for three years after a unanimous confirmation vote at which, quite notably, she was supported by the current GOP Speaker of the House of Representatives who stated expressly that his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

Now, given that Judge Brown Jackson is only 45 years old and has been a district judge for just three years, I can certainly see an objective basis for asserting that she is too young and/or does not yet have enough judicial experience to be an ideal SCOTUS nominee.  (That said, she is older, has been a federal judge twice as long, and has a more impressive paper record than Clarence Thomas circa 1991 when Prez GHW Bush nominated him to replace Justice Thurgood Marshall.)  But give her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light.  And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson.

Ergo the question in the title of this post: I would really like to hear (anonymously if needed) from folks who know more about Judge Brown Jackson's talents, preferably as a result of working directly with her professionally in the last few decades.  Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C."  Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement.  Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

March 9, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (34)

"Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California's Criminal Justice System"

The title of this post is the title of this new report recently published by The Opportunity Institute.  Here is the report's executive summary:

Criminal (In)justice examines 692 individuals who were prosecuted and convicted in California state or federal courts, only to have their convictions dismissed because the government prosecuted the wrong person, because the evidence was lacking, or because the police, defense, prosecutors, or court erred to such a degree that the conviction could not be sustained.  The 692 individuals subjected to these failed prosecutions spent a total of 2,346 years in custody, and their prosecutions, appeals, incarceration, and lawsuits cost California taxpayers an estimated $282 million when adjusted for inflation.  Eighty-five of these cases arose from a large group exoneration — the Rampart police corruption scandal — and are discussed separately in a later section of this report.

The remaining 607 convictions, all of which were reversed between 1989 and 2012, illuminate a dark corner in California’s criminal justice system.  These 607 individuals spent a total of 2,186 years in custody.  They burdened the system with 483 jury trials, 26 mistrials, 16 hung juries, 168 plea bargains, and over 700 appeals and habeas petitions. Many of the individuals subjected to these flawed prosecutions filed lawsuits and received settlements as a result of the error, adding to the taxpayer cost.  Altogether, we estimate that these 607 faulty convictions cost taxpayers $221 million for prosecution, incarceration and settlement, adjusted for inflation. This estimate is only a window onto the landscape of possible costs, as it does not include the often unknowable costs suffered by those subjected to these prosecutions.

The sections below provide a review of these 607 cases and offer some recommendations for change.

The first section, Characteristics of Injustice, paints a collective picture of the cases in our sample. Compared to California’s average, the individuals subjected to these errors were disproportionately prosecuted for violent crimes, especially homicide. This may be because prosecutions for violent crime are more likely to generate error than prosecutions for other crimes, though that question was beyond the scope of our research. Whatever the reason, failed prosecutions for violent crime account for a greater percentage of the wasted $221 million than failed prosecutions for other crimes. Indeed, flawed homicide convictions alone account for 52% of the $221 million, in part because these homicide cases took an average of 11 years to resolve and generated more lawsuits and civil settlements.

The second section, Causes of Injustice, catalogs the multitude of errors, dividing them into eight categories: eyewitness identification errors, prosecutorial misconduct, ineffective defense counsel, judicial mistake during trial, Fourth Amendment search and seizure violations, inadequate police practices before trial, unreliable or untruthful official testimony (officer or informant), and failure of prosecutorial discretion.

Prosecutorial misconduct and eyewitness identification were the most common errors in the flawed homicide prosecutions. When broken down by type of error, prosecutorial misconduct accounted for more of the cost in our sample than any other type of error.  By contrast, the most common errors in our sample were Fourth Amendment search and seizure errors, and judicial mistake.  These errors were resolved relatively quickly, however, and resulted in relatively little cost.

The third section, Costs of Injustice, walks through the cost analysis.  It documents the many hurdles raised by the California Victims Compensation and Government Claims Board.  This section also identifies many of the additional costs not captured by our methodology, including costs arising from wrongful misdemeanor convictions, flawed juvenile convictions, and cases that resolved prior to conviction, among others.  These unaccounted costs highlight the fact that this report documents only a portion of the vast unknown waste in California’s criminal justice system — but it is at least a beginning.

Criminal (In)justice ends with a section on Next Steps and Recommendations.  The problems presented in this report are undoubtedly complex, and each of them individually could be subject to its own investigation.  This report does not attempt to comprehensively define the universe of best practices that will solve all of the issues raised.  Instead, it identifies promising avenues for reform and highlights practices and jurisdictions that are leading the way. In particular, in 2006 the California Commission on the Fair Administration of Justice issued a report containing detailed recommendations regarding eyewitness identification, false confessions, informant testimony, problems with scientific evidence, and accountability for prosecutors and defense attorneys.  The recommendations represent the unanimous views of a diverse group of prosecutors, defense attorneys, judges, law enforcement, and other stakeholders.  To date, however, many of the substantive reforms have not been adopted, compromising public safety and leaving our criminal justice system at risk of endlessly repeating the errors catalogued here. (The report can be found at www.ccfaj.org.)

March 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Tuesday, March 8, 2016

Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016

As I briefly mentioned in a prior post, yesterday and today I have been attending and participating in the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place at the Georgetown University Law Center.  In addition to being greatly impressed by all the speakers and attendees, I have particularly benefitted from hearing this afternoon directly from Senator Charles Grassley and other key players involved in federal sentencing reforms efforts.  After hearing these folks discuss their work and the possibility of enactment of federal sentencing reform this year, I wanted to share some (too quick) reflections in the form of good news and bad news:

Good News regarding prospects for reforms making it through Congress:  Senator Grassley is clearly interested in and now seems quite committed to getting some form of federal sentencing reform through Congress this year.  He stated that work is afoot to modify his Sentencing Reform and Corrections Act to respond to concerns expressed by Senators Tom Cotton and Ted Cruz and others. This Reuters report on Senator Grassley's short speech provides the details, and here are the basics:

U.S. Senate Judiciary Committee Chairman Charles Grassley said on Tuesday that amendments to a bill to lower sentences for certain non-violent drug offenders are close to being finished. Grassley said the amendments, which go further to ensure violent offenders are not released, will build more support for the bill among Republican leadership in the Senate, which will decide whether to bring the bill up for a vote.

"We are very close to making some changes in this bill so we can get it brought before the United States Senate," Grassley said.... Grassley called Cotton's concerns "legitimate and reasonable" when speaking at Georgetown University Law School on Tuesday.

Though he did not provide specifics on the amendments, Grassley did say his team of legislators may have to drop parts of the bill that would have allowed offenders caught with firearms in their possession to have their sentences lowered. "We may have to jettison some changes in the firearm offenses and we may be able to do a better job to make sure that no one with a serious history of violence can get any relief under the bill," Grassley said....

"I'm confident that with the changes that we're making in the bill that we'll get even more support for our bill," Grassley said.  "And with more support, I'm confident that we will be able to go to the leaders in the Senate and persuade them that this bill is exactly what the American people need to see happen in the United States Senate."

As this last quote hints, Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley's comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for "not doing anything" in response to the coming SCOTUS nomination or on other priorities. And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.

Bad News regarding prospects for reforms making it through Congress:  Though not mentioned by Senator Grassley, getting a bill to the Senate floor and passed with a majority vote is only half the battle, of course.  The House of Represenatives also needs to pass a parallel bill, and there are continuing reasons to fear that the House will not move forward on sentencing reform bills unless and until mens rea reform is a part of the equation.  I am not sure concerns about mens rea reforms will alone scuttle reforms in Congress, but it already seems to have slowed the momentum for reform in various ways.  And every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.

Speaking of compromises and intricacies (as well as the coming election season), there may end up being some significant voices on the left that jump off the reform train after Senator Grassley makes his already modest Sentencing Reform and Corrections Act even more modest.  The original SRCA was so modest that some significant advocates for reform, including elected officials and policy groups, have already express serious concern that it does not mearly go far enough.  We likely will hear more of these complaints after we see the modified SRCA, and that in turn may lead advocates on both sides of the aisle to be content to wait and hope that their preferred candidates win in November and then to try again in 2017.  

A few prior related posts:

March 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Judge John Gleeson invents and issues a "federal certificate of rehabilitation"

Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

March 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8)

Monday, March 7, 2016

"Did Nancy Reagan's War on Drugs Backfire?"

The question in the title of this post is the headline of this intriguing new NBC News commentary by Tony Dokoupil. For reasons I will explain after an excerpt, I think this question is an unfair variation on the "When did you stop beating your wife?" question. But first, here are some excerpts:

It's one of the risks of a long and busy life: the threat that society will change its mind about your most important work. That happened to Nancy Reagan, the former first lady who died on Sunday at 94.  President Ronald Reagan's wife and closest adviser defined the drug panic of the 1980s, coining the phrase "Just Say No" and supporting her husband's rampaging war on drugs.  She often singled out marijuana as a special scourge, accusing dealers of taking "the dream from every child's heart."

But such positions have since slipped into disrepute in recent years, rejected even by many fellow Republicans. Nearly half the country has tried marijuana, meanwhile, and legal sales are booming in four states and counting.  Criminal justice reform, including reducing sentences for nonviolent drug convictions, has been a point of discussion on both sides of the 2016 presidential campaign.

Nancy Reagan never publicly recanted or so much as commented on her starring role in the drug war.  But with a look back at the origins of her and her husband's hardline policies, it's possible to trace the arc of one of America's most famous failures.

Ronald Reagan, eyeing a challenge to President Jimmy Carter, seemed to know that an attack on marijuana would tap into a growing displeasure with wayward teens, slack productivity and a society of apathetic Carter voters.  So in a major radio address in 1979 Reagan revealed what "science now knows," including the dubious "scientific facts" that smoking dope leads to cancer, sterility and "irreversible effects on the mental processes."  Never mind that the National Academy of Sciences had endorsed the idea of decriminalizing marijuana, finding "no convincing evidence" of its harmful effects.

The drug became an enemy of promise, the explanation for everything.  Why is your teenager refusing to cut the lawn?  Marijuana.  Why is your industry falling behind Japan's?  Marijuana.  Why do you have to lock your door at night? Hard drugs — which start with marijuana.

Nancy Reagan emerged as the most effective carrier of her husband's message.  She focused on almost nothing else during his presidency, beginning with an informal press conference aboard Air Force One in early 1982.  She told the press that drugs had become an epidemic.  Then she made her first stop in a cross-country swing, an open meeting of Straight Inc., a youth rehabilitation program in Florida....

Later on the same tour, during a visit to an elementary school in Oakland, California, she coined her famous phrase. An elementary school student asked her what he should do if anyone ever offered him pot. "Just say no!" she said.

Experts pounced.  The slogan was one of the most unsophisticated anti-drug messages of all time.  It suggested that drugs are evil, but you can quit them at any time.  Yet the phrase served a purpose.  It created what Nancy proudly called "an atmosphere of intolerance."  Other politicians compared drug dealers to vampires, murderers and traitors. And people began to associate pot with waste and dropouts....

In June 1982, Ronald Reagan appeared in the White House garden to officially declare a war on drugs.  "We're taking down the surrender flag that has flown over so many drug efforts; we're running up a battle flag.  We can fight the drug problem, and we can win. And that is exactly what we intend to do," he said.  Marijuana was the only drug to merit specific mention.

Regular readers surely know that I think demonizing marijuana was a mistake as part of the Reagan era "war on drugs." But I actually think Nancy Reagan's "just say no" voice in all this was not nearly as pernicious as this commentary is trying to suggest. Indeed, though an unsophisticated anti-drug message, the "just say no" mantra, in my view, continues to highlight and emphasize the fundamental individual reality at the base of many drug problems even though illegal drug use and abuse includes a lot more complicated issues.

The real problems resulting from the failed American war on drugs, in my view, did not at all emerge from Nancy Reagan urging individuals to just say no to drugs; the real problems flowed from waging the drug war with massive investments in big-government criminal justice system that too heavily invested in cops and cells rather than classrooms and counseling.

March 7, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)

Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions

A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."  

Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors.  But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:

The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors.  It does not forbid a reassessment of what has happened in the last five years.  Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence.  He thought only that the law did not give him the authority to impose the lower sentence....

I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence.  For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago.  Times change.  The law has changed.  Our culture is changing its views about how long we should put people behind bars.  There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.

March 7, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?

The question in the title of this post is my first reaction to this commentary piece authored by Inimai Chettiar from the Brennan Center for Justice which carries the headline "Don't Lock Up Prison Reform: Congress' fight over the Supreme Court shouldn't doom desperately needed sentencing reform." Here are excerpts (which includes something of a status report from Congress):

With a heated partisan battle over the future of the Supreme Court entering a stalemate, and some Democrats threatening to shut down the Senate, many are starting to expect nothing will get done in Congress this year.  But it doesn't have to be that way.  There is one topic on which lawmakers can act, even in this bitter climate.  The same Senate Judiciary Committee members sparring over the Supreme Court nomination process will soon announce a long-awaited compromise on a bill to help reduce America's prison population.

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country?  We certainly hope so.  The bill would be the largest congressional action on criminal justice reform in a generation, and a rare attempt at cooperation across party lines.  Lawmakers should not allow partisan bickering over the next Supreme Court justice to destroy a chance to fix a system we all agree is not working.  Congress must act fast, in this rare area of bipartisan accord, to pass sentencing reform....

Much has been learned in the last 25 years about who should be locked up and for how long.  The Sentencing Reform and Corrections Act recalibrates sentencing laws to implement these lessons....

Last month, Sens. Tom Cotton and Jeff Sessions raised concerns the legislation would jeopardize public safety.  In response, a group of nationally prominent police chiefs and prosecutors — the men and women who protect our safety every day — explained how the bill would actually help reduce crime.

Now, co-sponsors Sens. John Cornyn, Chuck Grassley and Mike Lee are revising the bill to address these anxieties.  At least two major changes are expected.  One would remove a provision from the bill that would have reduced mandatory minimums for repeat felons caught with a firearm.  Another would limit current prisoners' ability to seek reduced sentences under the new law if they committed certain serious crimes.  To many progressive advocates, these changes significantly reduce the breadth of the bill.

But even if there's a compromise bill, the next step is getting it to the floor for a vote.  Last week, Grassley met with President Barack Obama to tell him the Judiciary Committee will not hold a hearing or vote if he puts forth a Supreme Court nominee. It's rumored that some Democrats would allow the sentencing bill to falter if Republicans try to block a nominee.

But it is a false choice to pit sentencing reform against a Supreme Court battle.  Accord on one shouldn't be overridden by combat on the other....  Congress has passed legislation during other confirmation clashes.  While Justice Elena Kagan's nomination was pending in 2010, Congress passed a series of significant bills including sanctions against Iran, the Dodd-Frank Act, and another criminal justice law called the Fair Sentencing Act.  In 2005, a year that saw the confirmation of two new Supreme Court justices (Roberts and Alito), Congress passed a free trade act.

Both parties have a decision to make. Senate Majority Leader Mitch McConnell must decide whether to bring the measure to the Senate floor.  His Democratic counterparts Harry Reid and Nancy Pelosi must choose whether to bridge the divide, even if temporarily.  We will soon see how much the parties really care about getting government to work — and how much their cares about over-incarceration are more than just words.

Our politicians will not be able to sell the notion that the people's business should come to a complete halt for the sake of election-year posturing.  The time has finally come for criminal justice reform.  With Congress at a flashpoint over the Supreme Court, bipartisan cooperation to act matters now more than ever.

March 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

Extended discussion of sex offender registries as life sentences for juveniles

The new issue of The New Yorker has this very lengthy article authored by Sarah Stillman titled "The List: When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence." I recommend the piece in full, and here are just a few snippets:

Kids who sexually harm other kids seldom target strangers.  A very small number have committed violent rapes. More typical is the crime for which Josh Gravens, of Abilene, Texas, was sent away, more than a decade ago, at the age of thirteen.  Gravens was twelve when his mother learned that he had inappropriately touched his eight-year-old sister on two occasions; she sought help from a Christian counselling center, and a staffer there was legally obliged to inform the police.  Gravens was arrested, placed on the public registry, and sent to juvenile detention for nearly four years.  Now, at twenty-nine, he’s become a leading figure in the movement to strike juveniles from the registry and to challenge broader restrictions that he believes are ineffectual.  He has counselled more than a hundred youths who are on public registries, some as young as nine.  He says that their experiences routinely mirror his own: “Homelessness; getting fired from jobs; taking jobs below minimum wage, with predatory employers; not being able to provide for your kids; losing your kids; relationship problems; deep inner problems connecting with people; deep depression and hopelessness; this fear of your own name; the terror of being Googled.”

Often, juvenile defendants aren’t seen as juveniles before the law.  At the age of thirteen, Moroni Nuttall was charged as an adult, in Montana, for sexual misconduct with relatives; after pleading guilty, he was sentenced to forty years in prison, thirty-six of which were suspended, and placed on a lifetime sex-offender registry.  In detention, the teen-ager was sexually assaulted and physically abused.  Upon his release, his mother, Heidi, went online in search of guidance. “I’m trying to be hopeful,” she wrote on an online bulletin board, but “I wonder if he even stands a chance.”

Last fall, she contacted a national group called Women Against Registry, joining the ranks of mothers who are calling into question what a previous group of parents, those of victimized children, fought hard to achieve.  Recently, common ground between the two groups has emerged.  Many politicians still won’t go near the issue, but a growing number of parents — along with legal advocates, scholars, and even law-enforcement officials — are beginning to ask whether the registry is truly serving the children whom it was designed to protect.

If the sex-offender registry is a modern development, the impulse behind it — to prevent crimes by keeping tabs on “bad actors” — is not.  In 1937, after the sexualized murders of several young girls in New York, Mayor Fiorello LaGuardia called for the police to keep a secret list of “all known degenerates.”  A decade later, California built the first database of sex offenders, for private use by the police. But the practice of regulation took off only in the nineteen-nineties, when a tragedy changed the public’s sense of the stakes involved.

March 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Lots of Montgomery GVRs in latest SCOTUS order list

I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center.  But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).

Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016).  In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13).  On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.  The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.

I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.

March 7, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, March 6, 2016

"Assessing and Ameliorating Arbitrariness in Capital Charging: A Doctrinally and Empirically Anchored Inquiry"

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

Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago.  According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty.  The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty.  This has led to the growing disjunction between the Court’s rhetoric and the reality of capital punishment. Justice Breyer underscored the Court’s responsibility in holding death penalty systems accountable and called for full briefing on the basic question of the social realities of the administration of capital punishment.

Meaningful death penalty reform, if possible, requires a more prominent role for social science in death penalty decision-making.  In this Article, I develop a doctrinally anchored statistical model that carefully disentangles and evaluates questions of arbitrariness, bias, and disproportionality in capital charging.  I begin by discussing the Court’s inconsistent efforts to rationalize and regulate capital punishment systems.  I then adopt a framework of statistical inference in an effort to provide greater definitional and analytical clarity. Finally, I describe a set of analytical tools uniquely suited for diagnosing capital charging errors that closely aligns with the Court’s conceptualization of unacceptable arbitrariness. I illustrate the usefulness of the model on data involving actual death penalty-eligible defendants from Georgia.

My analysis reveals that death penalty charging practices are highly inconsistent, irrational, and disproportionate, both within and across jurisdictions in Georgia.  The Article concludes by explaining how the empirical model might be used to improve accuracy and consistency in capital charging systems through empirically informed front-end charging screening.

March 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

In praise of (impossible?) request tasking Government Accountability Office with accounting for "the cost of crime in the United States"

Crime-2010I was quite pleased to discover this notable press release from the House Judiciary Committee reporting on a notable letter sent by two Representatives to the Comptroller General.  Here is the substantive heart of both the press release and the letter:

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Congressman Steve King (R-Iowa) have requested that the Government Accountability Office (GAO) study the cost of crime in the United States to better inform members of the House Judiciary Committee as it continues its bipartisan criminal justice reform initiative.  In 2014, there were nearly 1.2 million violent crimes and 8.3 million property crimes in the United States, generating substantial costs for Americans, communities, and the country. In a letter to Comptroller General Gene Dodaro, Goodlatte and King request that the GAO study this issue and breakdown the cost of crime for federal, state, and local governments.

Below is the text of the letter....  

Dear Comptroller General Dodaro:

In June of last year, the House Judiciary Committee launched a criminal justice reform initiative.  Over the ensuing months, the Committee has addressed a variety of criminal justice issues through legislation. In order to assist our efforts in this endeavor, we are writing to you regarding our concerns about the cost of crime in the United States.  According to the Federal Bureau of Investigation, there were an estimated 1,165,383 violent crimes and an estimated 8,277,829 property crimes in 2014.  Undoubtedly, these and other crimes generate substantial costs to society at individual, community, and national levels. 

Accordingly, we seek the assistance of the Government Accountability Office in fully investigating the cost of crime in the United States.  Specifically, we are interested in:

  1. The cost of Federal and State crimes to victims of crime:
    1. Total cost
    2. Cost by state
  2. The cost of crime to the United States economy and to state economies
  3. The cost of crime to Federal, State, and local governments
  4. The cost of crime, per year:
    1. Per type of criminal offense
    2. Average cost per criminal  
    3. Average cost per victim
  5. The rate of recidivism of offenders who are released from terms of imprisonment, and the costs described under #1 through #3 for crimes committed by such offenders subsequent to their release  

We look forward to working with you so that GAO can expeditiously complete this important task. 

I am already very excited to see what the GAO comes up with as it takes up this request to "study the cost of crime in the United States." Indeed, upon seeing this press release, I started thinking it was quite notable and somewhat curious that there apparently has not been any prior requests for the GAO to engaging in what I agree is an "important task."

That said, I think this task has to start with important and challenging questions that are integral to defining what kinds of "Crimes" and what kinds of "costs" are to be included in this study and its efforts at accounting. Notably, this letter references the "nearly 1.2 million violent crimes and 8.3 million property crimes in the United States" as reported by the FBI, but this accounting leaves out what would seem to be some of the most wide-spread significant crimes in America according to various measures of nationwide illegal behaviors each year, namely drunk driving (with over 100 million estimated yearly incidents) and marijuana trafficking (over 50 million estimated incidents). Should the GAO leave out drunk driving incidents unless one includes a physical harm to persons or property? Should the GAO leave out marijuana offenses altogether in its accounting even though roughly half of all drug arrests nationwide are for these offenses and those arrests have various obvious economic costs to governments?

Ultimately, though, the challenge of defining what "crimes" to consider pales in comparison to defining what "costs" to consider in this kind of study. The majority of violent crimes recorded by the FBI are aggravated assaults, which are "an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury." And these kinds of assaults seem to come in all shapes and sizes in 2014 according to FBI data: Of those reported to law enforcement, "26.9 percent were committed with personal weapons, such as hands, fists, or feet. Firearms were used in 22.5 percent of aggravated assaults, and knives or cutting instruments were used in 18.8 percent. Other weapons were used in 31.9 percent of aggravated assaults." Can GAO reasonably guess that the "costs" to a victim of being severely beaten by fists are less (or perhaps more) than the costs of being shot? Do these costs turn significantly on the nature of the victim based on their age, health, gender or professional activities? If such an assault requires a person to say in bed for a week to recover, should we say the "costs" of missed acitivities are the same or are different for, say, a sales clerk or a student or an unemployed person?

Critically, as the image reprinted here highlights, doing these calculations is possible if you make a lot of assumptions.  Indeed, the Rand Corporation has run these numbers in the past, although many questions and concerns could obviously be raised about its accounting decisions.

March 6, 2016 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Iran measuring up white-collar nooses after sentencing three businessmen to death

As reported in this CBS piece, headlined "Iran sentences billionaire businessman to death," it seems that Iran's justice system does not view even prominent corporate executives as too big to kill.  Here are the deadly details:

An Iranian court has sentenced a well-known tycoon to death for corruption linked to oil sales during the rule of former President Mahmoud Ahmadinejad, the judiciary spokesman said Sunday.
Babak Zanjani and two of his associates were sentenced to death for "money laundering," among other charges, Gholamhossein Mohseni Ejehi said in brief remarks broadcast on state TV. He did not identify the two associates.
Previous state media reports have said the three were charged with forgery and fraud. "The court has recognized the three defendants as 'corruptors on earth' and sentenced them to death," said Ejehi. "Corruptors on earth" is an Islamic term referring to crimes that are punishable by death because they have a major impact on society.  The verdict, which came after a nearly five-month trial, can be appealed....
Iran's prosecutors contend Zanjani withheld billions in oil revenues channeled through his companies. A news website run by the judiciary identified the two associates as British-Iranian businessman Mahdi Shams, who was detained in 2015, and the other as Hamid Fallah Heravi, a retired businessman.
Zanjani was arrested in 2013 during a crackdown on alleged corruption during Ahmadinejad's rule.  Iran's Oil Ministry says Zanjani owes more than 2 billion euros ($2.25 billion) for oil sales he made on behalf of Ahmadinejad's government.  Zanjani is one of Iran's wealthiest businessmen, with a fortune worth an estimated $14 billion. He was arrested shortly after the election of President Hassan Rouhani, who ordered a crackdown on alleged corruption during the eight-year rule of his hard-line predecessor.  In a 2013 interview with the BBC, Zanjani claimed he was not a political person, saying: "I don't do anything political, I just do business."
Iran has in the past executed other wealthy individuals found guilty of similar charges. In 2014, Iran executed billionaire businessman Mahafarid Amir Khosravi over corruption charges.

March 6, 2016 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (3)

Saturday, March 5, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Friday, March 4, 2016

Post-Hurst hydra takes big bite into some capital cases in Alabama

Download (1)Regularly readers are perhaps now tired of hearing me use the term "post-Hurst hydra" (and what I still think is a cool image) to describe the litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases.  But that hydra keep rearing its head, and yesterday it took a big bite in Alabama as reported in this local article

A Jefferson County judge Thursday morning ruled that Alabama's capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.  In making her ruling after a hearing, Jefferson County Circuit Judge Tracie Todd barred the death penalty in the cases of four men charged in three murders.

"The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd said in reading her written ruling from the bench.  "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The result of Todd's order is that the judge won't allow the death penalty to be imposed in the cases before her.  But attorneys present at the hearing said it would be up to other judges whether to follow her example.  But Todd said her ruling likely will be appealed by prosecutors.  If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

"Judge Todd's ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court," Alabama Attorney General Luther Strange said Thursday afternoon.   "Alabama's capital sentencing statutes are constitutional.  Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional. We are currently reviewing the Judge's written order, and expect to file an appeal.  We fully expect today's ruling by Judge Todd to be reversed."

As this press account of the trial court ruling highlights, the decision by Judge Todd covers a lot more ground than just the application of the SCOTUS Hurst opinion in Alabama.  The opinion is available at this link, and all persons concerned about the death penalty ought to read it in full.  Toward the end of the extended opinion, the judge discusses Hurst and seems to rest her decision in large part on its Sixth Amendment holding. But she also discusses a number of other issues surrounding Alabama's capital sentencing scheme, and it is actually hard for me to assess whether the interplay of concerns discussed in this opinion may make it more or less likely to be reversed on appeal.

March 4, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"

The title of this post is the title of this new article now available via SSRN authored by Michael Tonry.  Here is the abstract:

Concern for equality and human dignity is largely absent from American sentencing.  Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer.  The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies.  The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.

The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems.  Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.

March 4, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, March 3, 2016

Florida legislature completes Hurst "fix" for its capital punishment procedures

As reported in this AP piece, the "Florida Legislature on Thursday sent to Gov. Rick Scott a bill that would require that at least 10 out of 12 jurors recommend execution in order for it be carried out." Here is more:

Florida previously only required that a majority of jurors recommend a death sentence. Scott has not said if he will sign the measure but he has supported Florida's use of the death penalty since he became governor.

The U.S. Supreme Court ruled in January that the current law is unconstitutional because it allows judges to reach a different decision than juries, which have only an advisory role in recommending death.  The state Supreme Court halted two pending executions following the ruling, and court cases across the state had been put on hold.

Legislators were initially divided over whether they should require a unanimous jury recommendation in death penalty cases. Florida is one of only a handful of states that does not require a unanimous decision by the jury . State senators agreed to switch to 10 jurors as part of a compromise with the House, but some legislators have warned that the decision could result in the law being challenged once again.

The bill sent to Scott does not apply to the 389 inmates now sitting on Florida's death row.  The state Supreme Court has been asked to decide whether the U.S. Supreme Court ruling should apply to those already sentenced to death.

It is an absolute certainty, not just a possibility, that Florida's new capital sentencing procedure will be "challenged once again," which is why I put the term "fix" in quotes in the title of this post.  Indeed, given the need now to sort through the impact of Hurst (1) on the "389 inmates now sitting on Florida's death row" and (2) on Florida's (many) pending capital cases based on crimes committed before this new law was passed, and (3) on any future capital cases that apply this new law, I kind of feel bad for all the Floridian capital case prosecutors and defense attorneys who will likely not have much of an opportunity to work on their Florida tans for quite some time.

March 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Why I am tempted now to call two federal judges who were formerly federal public defenders "front-runners" for a SCOTUS nomination

In this post two weeks ago, I sort-of started complaining about Prez Obama taking "so long" to name a SCOTUS replacement for the late Justice Antonin Scalia, but then I speculated that the Prez was waiting for some political developments and just the right political moment to name just the right nominee.  In the wake of this week's political events (aka Super Tuesday and its aftermath), and also the big Supreme Court argument about abortion rights (How Appealing coverage here), I think the time is now becoming right for Prez Obama to name one of the two former federal public defenders who are now federal judges that I have previously discussed in this space:  Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson.

Notably, this new New York Times piece reports that Judge Kelly is being vetted by the White House, and this National Law Journal story from last week reported that Judge Brown Jackson was also being vetted.  Of course, last week around this time we heard from the White House that Nevada Gov Brian Sandoval was being vetted, and that ultimately proved to be something of non-starter (or perhaps even a head-fake).  But this time around, I believe talk of vetting these judges is serious, and I especially think Prez Obama may be strongly drawn to both of these potential nominees because (1) they both served as federal public defenders, and Prez Obama has said he wants criminal justice reform as part of his legacy, and (2) they have both recently received unanimous support during prior confirmation hearings and had a notable GOP leader expressing strong support for them.

Though I know I am biased here because of my interest in criminal justice reform and lots of time spent with public defenders, I read Prez Obama's recent SCOTUSblog posting as something of a signal that he may be interested in appointing someone who had represented the poor or otherwise disadvantaged.  Specifically, Prez Obama said that, in addition to seeking to appoint someone "eminently qualified," he wanted (with my emphasis added):

[S]omeone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand....

[And] the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.

Of course, one can readily say that a person with impressive credentials who had once served as a state or federal prosecutor or Justice Department official would have a commitment to impartial justice and a keen understanding that justice is not about abstract legal theory.  But, critically for purposes of my theory that Prez Obama will be drawn to appoint a former federal public defender like Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson, the last four SCOTUS appointments were all impressively credentialed individuals who had served as a state or federal prosecutor or Justice Department official.  Specifically, Chief Justice Roberts had worked for DOJ, Justice Alito had been US Attorney for New Jersey, Justice Sotomayor was a New York state prosecutor, and Justice Kagan was Solicitor General.  Prez Obama may think, and he certainly could make the case, that SCOTUS now has plenty of Justices who know what it is like to be a "real world" lawyer making arguments on behalf of the government, but it would benefit now from having a "real world" lawyer who worked on behalf of the poorest individuals making arguments against the federal government.

I could go on and on about why I think a (post-Baby Boomer) female nominee would be an especially shrewd choice right now when the Democrats appear poised to nominate the first female candidate for Prez (who is a Baby-Boomer) and the GOP has a whole lot of males of all ages yelling at each other about who is best to "beat" that female candidate.  But what I think make these two Judges especially appealing is the unanimous support they received from the Senate when their prior nominations were considered.  That unanimous support would enable Prez Obama to say forcefully that GOP leaders in the Senate ought to at least have the courtesy to meet with the nominee and hold a hearing as part of their "advise and consent" responsibilities.  I am not confident that GOP leaders will extend that courtesy in this political environment, but the unfairness of being unwilling to do so will be extra stark when they are shutting out someone unanimously approved in the past.

One last self-serving nugget of sentencing fun here: I suspect recent federal public defenders, and perhaps only federal public defenders, could honestly say that a few legendary criminal justice opinions authored by Justice Scalia, opinions like Kyllo v. United States, Crawford v. WashingtonBlakely v. Washington, and Johnson v. United States, are among their all-time favorite.

Thought, dear readers, on my latest SCOTUS musings?

Prior related posts on new SCOTUS nominee possibilities:

March 3, 2016 in Who Sentences? | Permalink | Comments (7)

Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"

-radleybalkoflickrAs reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:

As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.

Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.

For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.

March 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Has the federal Adam Walsh Act been a success and should it be reauthorized?

The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:

Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders.  The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.

“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification.  This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.

The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness.  Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.

Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities.  The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.

The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981.  Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today.  Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).

Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.

March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)

"This Morning’s Breakfast, Last Night’s Game: Detecting Extraneous Influences on Judging"

The title of this post is the title of this notable new empirical article on SSRN authred by Daniel Chen, which actually has some encouraging federal sentencing findings. Here is the abstract (with the sentencing story highlighted):

We detect intra-judge variation in judicial decisions driven by factors completely unrelated to the merits of the case, or to any case characteristics for that matter.  Concretely, we show that asylum grant rates in US immigration courts differ by the success of the court city’s NFL team on the night before, and by the city’s weather on the day of, the decision.  Our data including half a million decisions spanning two decades allows us to exclude confounding factors, such as scheduling and seasonal effects.  Most importantly, our design holds the identity of the judge constant.

On average, US immigration judges grant an additional 1.5% of asylum petitions on the day after their city’s NFL team won, relative to days after the team lost.  Bad weather on the day of the decision has approximately the opposite effect. By way of comparison, the average grant rate is 39%.  We do not find comparable effects in sentencing decisions of US district courts, and speculate that this may be due to higher quality of the federal judges, more time for deliberation, or the constraining effect of the federal sentencing guidelines.

March 3, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, March 2, 2016

Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?

The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students.  The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):

Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.

Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases.  WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.

The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student.  He already is serving three life prison terms for a sexual assault in northern Virginia.

According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...

Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search.  Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.

After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas.  He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample.  That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities.  The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.

The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.

Both the Harrington and the Graham families are supportive of the deal, WTVR reports.  Both families requested to give victim impact statements at the Wednesday afternoon hearing.

When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.

Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.

Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome.  But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (29)

Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"

As regular readers know, various groups and persons associated with the wealthy and politically active Koch brothers have been very supportive of state and federal sentencing reform efforts. Continuing in that tradition, Mark Holden, who is senior vice president and general counsel at Koch Industries, Inc., has authored this new Medium commentary titled "The Factual Case for Criminal Justice Reform."  I recommend the piece is full (with all its links), and here are excerpts:

These days, it’s hard to find legislation in Washington, D.C. that has bipartisan support. It’s even harder to find legislation that will help people improve their lives instead of making their lives worse.

Yet that’s exactly what both houses of Congress are currently doing through criminal justice reform legislation.  The Senate is considering the Sentencing Reform and Corrections Act.  It contains a series of long overdue reforms that have been tried at the state level and have been proven to reduce crime, lower spending on incarceration, reduce incarceration rates, and give people a better chance at leading a productive and fulfilling life once they’re released from prison.

There’s little doubt that the current system is dysfunctional.  American criminal justice is too often inconsistent with the promises of the Bill of Rights.  We have a two-tiered system, with the wealthy and the well-connected experiencing a much better system than the poor, oftentimes regardless of guilt or innocence.  A growing number of Americans recognize this  —  nearly 80 percent of the country supports reform.  So do many prosecutors and judges.  For example, liberal federal Judge Rakoff of the Southern District of New York and conservative Judge Kozinski of the Ninth Circuit Court of Appeals have raised awareness that innocent people are pleading guilty to crimes they didn’t commit because they cannot effectively defend themselves against the power of the government.  That is why calls for reform are growing so loud from both ends of the political spectrum that Congress can no longer ignore these problems, which have festered for more than three decades.

The numbers speak for themselves. Over the past decades more and more Americans are put behind bars, sometimes for crimes they didn’t commit or with punishments that are not consistent with the crime. The result has been a skyrocketing prison population that ruins lives and wastes money. At the federal level alone, the number of prisoners has increased by 795 percent in the past 35 years. Federal and state spending on prisons also increased over this timeframe to $8 billion annually, which is 3 to 4 times more per capita than we spend on education. America is now the world’s largest jailer, with only 5 percent of the world’s population but a whopping 25 percent of the world’s prisoners. And there are as many Americans with a college degree as there are Americans with a criminal record.

As more people get caught in this system, it breaks apart families, destabilizes communities, increases poverty, and makes it harder — if not impossible — for people to rejoin society after they’ve served their sentence. Why? Because criminal convictions are accompanied by countless collateral consequences that burden people for the rest of their lives.

Unfortunately, not everyone recognizes the need for reform. As demand for reform grows louder, the defenders of the status quo are mobilizing. Their argument is simple: Reforming the criminal justice system will endanger society and put people’s lives at risk. But these claims have no basis in reality. In fact, the Sentencing Reform and Corrections Act will have the opposite effect.

Many of its most important provisions are modeled after successful reforms from states such as Georgia, Utah, Kentucky, and Texas. In the past decade, more than half of states have passed a variety of changes to their criminal justice systems. Some lowered mandatory minimums  —  non-negotiable sentences that can run into the decades  —  for low-level offenders.  Others gave judges greater discretion in sentencing. And still more tried a variety of other worthwhile reforms, including prison reform and expungement of past criminal records so worthy individuals seeking redemption could put their past mistakes behind them and have a fresh start when leaving prison.

The results speak for themselves.  While the federal imprisonment rate increased by 15 percent over the last decade, the state rate fell by 4 percent.  This didn’t lead to an increase in crime, either.  No less than 32 states saw drops in both the percentage of people imprisoned and the overall crime rate.  Put another way: Criminal justice reform made society safer.

We need federal reforms along the same lines. That’s what the Sentencing Reform and Corrections Act would do, which is why it has broad support from law enforcement.  It contains a variety of reforms that would enhance public safety and make the criminal justice system more fair and humane....

Will lawmakers seize this opportunity to make people’s lives better, or will they fall prey to fear-mongering?  For the sake of the least fortunate in society, I certainly hope they make the right choice.

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"One Size Does Not Fit All: The Need for a Complete Abolition of Mandatory Minimum Sentences for Juveniles in Response to Roper, Graham, and Miller"

The title of this post is the title of this article authored by Lindsey Krause now available via SSRN. Here is the abstract:

Juvenile sentencing practices in the United States have seen an enormous amount of reform in the past decade. Three United States Supreme Court cases created the foundation for such reform: Miller v. Alabama, Graham v. Florida, and Roper v. Simmons.  Each of these cases recognizes that youth in the criminal justice system are different from adults and should be treated as such.

Mandatory minimum sentences prevent courts from following the promises of Roper, Graham, and Miller.  The mitigating factor of youth cannot be considered if a judge is given no discretion where a mandatory minimum sentence exists.  This article analyzes recent jurisprudence in Iowa, completely abolishing mandatory minimum sentences for youth under the age of 18 and advocates for the remainder of the nation to follow in the state's footsteps.

March 2, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Updating Delaware's struggles with the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases.  And in this post about a month ago, I reported on the notable decision in Delaware to put all pending capital murder trials and executions on hold until the state Supreme Court resolved the constitutionality of the state's death penalty law in the wake of Hurst.  

Now, thanks to this local article headlined "Public defenders: Death penalty unconstitutional," we can all read about the arguments from Delaware capital defense attorneys that the post-Hurst hydra must devour the state's existing capital sentencing scheme. Here are the basics from this press account:

Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional -- and therefore needs to be fixed by lawmakers.  The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.

"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said.  "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."...

Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware.  They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.

"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said.  "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."

The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional.  "There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote.  "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous.  That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."

The full brief referenced above can be accessed at this link.

Prior related post:

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 1, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, February 29, 2016

SCOTUS appears troubled by state judge's failure to recuse in capital case after past history as prosecutor in case

This AP report, headlined "Justices hear judicial-bias claim in death-row case," reports on today's SCOTUS oral argument in the Williams case involving Eighth Amendment and Due Process claims arising from a jurist's failure to recuse himself in a Pennsylvania capital case.  Here are the basics:

The Supreme Court on Monday appeared likely to rule that a Philadelphia district attorney-turned-state high court judge should not have taken part in the case of a prison inmate whose death-penalty prosecution he had personally approved nearly 30 years earlier.

The justices indicated that inmate Terrance "Terry" Williams should get a new hearing in Pennsylvania's Supreme Court because then-Chief Justice Ronald Castille voted to reinstate Williams' death sentence in 2014. A lower court judge had thrown out the sentence because prosecutors working for Castille had hidden evidence that might have helped the defense in Williams' 1986 murder trial.

Justice Sonia Sotomayor was among several justices who focused on Castille's actions in 1986, when he was the Philadelphia district attorney. "The judge here actually signed his name to the review of the facts and the decision to seek the death penalty," Sotomayor said.

When Philadelphia Deputy District Attorney Ronald Eisenberg told the justices that the passage of time had lessened concerns about bias, Justice Anthony Kennedy was almost incredulous. "So the fact that he spent 30 years in solitary confinement actually helps the state?" Kennedy said.

The conditions of Williams' confinement could be an issue in the outcome of his case.  Pennsylvania has not executed anyone since 1999, and Gov. Tom Wolf has declared a moratorium on executions.  But even if the chance of Williams' being put to death is small, he continues to be held in isolation along with other death row inmates in Pennsylvania.  The court also confronted whether Castille's participation in the case made a difference on a court that ruled unanimously against Williams.

The full SCOUS oral transcript in Williams v. Pennsylvania is now  available at this link.  As always, I would be grateful for help from readers to identify any especially noteworthy (i.e., blog-worthy) interchanges from the argument.

February 29, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade.  But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS:  [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation.  Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine.  Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights.  Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor. 

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles.  But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law.  That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Some prior related posts:

February 29, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Iran reportedly wages the "war on drugs" by executing the "entire adult male population" of a village!?!?!

There is much talk in the United States about causalities of all sorts from the tough ways in which US governments use criminal justice powers of all sorts to wage a "war on drugs."  But this FoxNews article reports on Iran waging the war with a whole new type of extreme powers.  The piece is headlined "Iran reportedly executes every adult man in one village for drug crimes," and here are the stunning details:

The entire adult male population of a village in southern Iran was executed for drug offenses last week as part of a country-wide crackdown on trafficking, state media report. Iran’s vice-president for women and family affairs, Shahindokht Molaverdi, revealed the news in an interview with the Mehr News agency last week, but did not say when or where the executions took place, or how many people were killed.

“We have a village in Sistan and Baluchestan province where every single man has been executed,” she said, according to The Guardian.  “Their children are potential drug traffickers as they would want to seek revenge and provide money for their families.  There is no support for these people.”

Molaverdi said President Hassan Rouhani’s government has brought back previously-axed family support programs.  “We believe that if we do not support these people, they will be prone to crime, that’s why the society is responsible for the families of those executed,” she said.

Human rights groups denounced the executions.  “The apparent hanging of every man in one Iranian village demonstrates the astonishing scale of Iran’s execution spree,” Maya Foa, from the anti-death penalty group Reprieve, told The Guardian.  “These executions — often based on juvenile arrests, torture, and unfair or nonexistent trials — show total contempt for the rule of law, and it is shameful that the UN and its funders are supporting the police forces responsible.”...

The Islamic Republic hanged 753 people in 2014, more than half of whom were convicted of drug-related offenses, the group said. In 2015, nearly 700 people were executed in Iran in the first half of the year alone, it added. The mass executions have led activists to call on the U.N. Office on Drugs and Crime to stop funding the Iranian government’s anti-narcotics campaign until Tehran ends the use of capital punishment for such offenses, The Guardian reports.

Candidly, I have a hard time wrapping my head around the notion that the Iranian government, in order to try to stop drug trafficking in the name of helping "women and family affairs," would execute the entire adult male population of a village in southern Iran (and then, apparently, will provide government support for the families of those executed). But, absent further reports that this story is inaccurate, I have to conclude that Iran believes no punishment is off-the-table and unjustified when trying to combat the scourge that is drug use and abuse.

February 29, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential

The Supreme Court this week hears oral argument in a trio of criminal justice cases this week.  Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court).  Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:

Voisine v. United States (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.

In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.

February 29, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case

The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases.  For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year.  Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.

On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186.   The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner.  But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:

Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together.  The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.  Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

February 29, 2016 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (1)

Sunday, February 28, 2016

"With Marijuana Legal, Why Are People Still Doing Life For Weed?"

Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer).  Here are excerpts: 

At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.

“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.

One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...

 In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...

Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)

Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.

Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65.  While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.

“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought.  “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”   

Cross-posted at Marijuana Law, Policy and Reform

February 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (5)

Profiling a federal district judge eager to make the case for federal sentencing discretion

The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:

Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.

But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....

Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created.  The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts.  Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range.  And any discretion on the part of judges was intended to be restricted to the limits of that range.  But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic.  What’s the point of a judge if he is discouraged from offering his judgment?

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction.  At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

Coughenour’s position is clear.  He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....

[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced.  And then, he started visiting prisons all over the country with the same purpose.  To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private.  A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.

During these meetings, the judge always asked the same questions: “How much time do you have left?  What are you doing to prepare yourself for getting out?  Are you dealing with anything you can’t handle?  Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food.  The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy.  But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.

February 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, February 26, 2016

Could a new group called Public Safety Officials on the Death Penalty really impact discussions of death penalty reform?

The question in the title of this post is prompted in part by this recent piece by Ted Gest at The Crime Report headlined "Justice System Voices Question Capital Punishment."  Here are excerpts:

As support for capital punishment in the United States erodes, one viewpoint not often heard in debates on the issue is that of the people who do the work that leads to executions: officials of the criminal justice system.

A Washington, D.C., organization called The Constitution Project is moving to fill that gap, with a group called Public Safety Officials on the Death Penalty (PSODP), which it describes as "an independent group of current and former law enforcement, prosecutors and corrections officials strongly concerned about the fairness and efficacy of the death penalty in America."...

[T]he new panel of public safety officials is offering its expertise to policymakers in states that are considering whether to continue executions. The group has three co-chairs: former Virginia Attorney General Mark Earley, former Massachusetts corrections commissioner Kathleen Dennehy, and former Southern Pines, N.C., Police Chief Gerald Galloway, who formerly led the North Carolina Chiefs of Police Association. The group says it stands ready to provide information. It does not take a formal stand on whether capital punishment should be abolished, but it is clear that the co-chairs believe that the current system is not operating fairly and efficiently.

Former Police Chief Galloway declares that the capital punishment system is "dysfunctional," noting that it often takes many years to put an accused murder to death, and that more than 150 people have been removed from death rows in various states after being exonerated or having their convictions overturned for legal reasons. Noting that some convicted murders spend decades on death row amid seemingly endless legal appeals, Galloway told The Crime Report, "The system is unfair. It is too expensive. Some innocent people end up on death row, and victims' families wait for justice that never occurs."

Dennehy said her biggest concern was "the possibility of executing an innocent person -- that is too high a price to pay." S he also cited allegations of "botched executions" in Oklahoma and elsewhere, saying that corrections employees who must carry out the sometimes tricky lethal injection process can suffer psychological harm. (Oklahoma inmate Clayton Lockett died in 2014 more than an hour after he was placed on an execution gurney after an employee had difficulty inserting a needle.)

Earley, who served as Virginia’s attorney general from 1998 until mid-2001, said last year he had changed his views and now opposes capital punishment. "If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty," he wrote in the University of Richmond Law Review.  “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty."

Some members of the new group favor capital punishment, but the entire panel agreed that, "each of us is ready to explore alternative ways to achieve a more just and effective public safety system.”  Unless the system can be fixed to insure that innocent people are not sent to death row and that the appeals of those who are convicted in capital cases are handled promptly, those found guilty of murder should serve a maximum penalty of life in prison without the possibility of parole, Galloway and Dennehy said.

Members of the new group will offer their expertise to officials in states considering whether to retain the death penalty, Galloway said. "We represent a powerful perspective" he said, referring to their years of experience working in the justice system.

One major state that faces a close public vote on the issue is California, where there may be competing propositions on the November ballot: one to speed executions and another to abolish capital punishment.... As of last year, California had by far the nation's largest death row, housing 743, inmates, and last conducted an execution in 2006. Jeanne Woodford, former California corrections director, is a member of The Constitution Project's new panel.

February 26, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Internalizing Private Prison Externalities: Let's Start with the GED"

The title of this post is the title of this interesting and timely new piece by David Siegel recently posted on SSRN. Here is the abstract:

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way.  Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts.  Although these costs are real and substantial to the inmates who bear them, because the inmates are not parties to the contract, these costs are externalities.

Imposing these social costs on prison operators could improve the conditions for inmates in their custody and is very likely to improve these inmates’ success after release. Unlike more complex strategies for imposing incentives on correctional programs to reduce recidivism, prison education is a known, straightforward rehabilitative strategy whose provision can be measured quite easily at the point of release.  There is even a well-accepted metric for prison education administered by an independent third party: the General Educational Development Test (GED).  This article proposes using the GED to internalize the cost of reduced or poor inmate education by imposing financial penalties on private prison operators whose inmates do not obtain, or make progress toward, a GED during their incarceration. This would provide the social benefits of inmate education, alter private prison operators’ behavior at minimal administrative cost, and most importantly, benefit inmates being released.

February 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

"Does Smarter Sentencing Equal Lower Prison Numbers?"

The title of this post is the headline of this lengthy new piece by Adam Wisnieski at The Crime Report, which is largely a report on what various experts are saying about the impact of modern sentencing reforms on prison populations.  I recommend the piece in full, and here are some excerpts (with a few of the original's links preserved):

Most analysts agree that states have been much further ahead than the feds on these issues.  For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level.  The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support — but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.

There’s no shortage of voices about what type of impact that bill would have.  But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.”  Have states been successful?  Experts contacted by The Crime Report had different views. 

Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation. “We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”

Other researchers disagree, saying there is more smoke than fire in state efforts.  Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem. “Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”

Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing.  In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem.  “What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”...

About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.

That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago.  From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.

That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008.  Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress.  The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111.  “The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.

Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded.  “While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”

Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system.  “The problem with tweaking things is they have to be implemented by somebody,” he said....

One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia.  In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes.  Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.

If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity.  The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.

So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done.   “Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”

February 25, 2016 in Data on sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Former judges and Justice in Washington urge state's current Justices to strike down state's death penalty

This AP article from Washington reports on a notable brief filed in a capital case in the state Supreme Court.  The article is headlined "Dozens of judges ask Washington high court to ban death penalty," and here are excerpts:

Washington state's relationship with the death penalty over the past few decades has been so tenuous that even mass killers, serial killers and a cop killer have escaped it.  Only five people have been executed in the past 35 years. Gov. Jay Inslee, a one-time supporter of capital punishment, has said no executions will take place while he's in office.  And the state prosecutors association has called for a referendum on whether to bother keeping it on the books.

Now, the state's high court, which came within one vote of striking down the death penalty a decade ago, is re-examining it.  Dozens of former Washington judges have taken the unusual step of urging the court to find it unconstitutional this time — including former Justice Faith Ireland, who sided with the narrow majority in upholding capital punishment back in 2006.

Arguments are scheduled for Thursday in the case of Allen Eugene Gregory, who was convicted of raping, robbing and killing Geneine Harshfield, a 43-year-old cocktail waitress who lived near his grandmother, in 1996.

His lawyers are challenging his conviction and sentence, including procedural issues and statements made by a prosecutor during the trial.  But they also insist that the death penalty is arbitrarily applied and that it is not applied proportionally, as the state Constitution requires.  Certain counties — especially Pierce, where Gregory was convicted — have been aggressive about seeking execution, while others have said a death-penalty case would quickly bankrupt them, making the location of the crime a key factor in whether someone might be sentenced to death....

One of the newer justices, Charles Wiggins, has expressed concerns over indications blacks are statistically more likely to be sentenced to death in Washington than whites, while another, Sheryl Gordon McCloud, represented defendants who had been sentenced to death — and criticized the way the death penalty is applied — during her previous career as an appellate lawyer....

In its brief, the Pierce County Prosecutor's Office urged the court to uphold the punishment, which is allowed by the federal government and 32 states.  It argued the court has repeatedly upheld capital punishment, that those rulings should stand, and that Gregory shouldn't be allowed to make his constitutional arguments because he did not properly preserve those issues for appeal.  "Since death penalty abolitionists are unable to convince large numbers of Washingtonians to abolish the death penalty, defendant turns to this court in hopes that he can convince five of the court's members that abolishing the death penalty is reflective of current public opinion," deputy prosecutor Kathleen Proctor wrote.  "Essentially, defendant asks this court to become a legislative entity and to override the desire of the people of this state to have the death penalty as an available sanction for certain homicides."

In joining 55 other ex-judges who signed a brief filed by the American Civil Liberties Union of Washington urging an end to capital punishment, Ireland, who served a single term on the Supreme Court, was particularly concerned about geographical disparities in death sentences — an issue that the majority held was not squarely before the court in 2006.  "We can't call the death penalty anything but arbitrary when it depends on whether you kill someone in a rich county or one that can't afford such a trial," she wrote in an email to The Associated Press.  "That could be fixed in my opinion by having death penalty prosecutions and defenses funded at the state level."

February 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, February 24, 2016

Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? UPDATE: Gov Sandoval does not want to be considered!

This afternoon I receive two email news alerts about a new SCOTUS nominee "front-runner": Nevada GOP Gov Brian Sandoval.  I had been planning to do a post about Gov Sandoval as an interesting possible SCOTUS candidate over the weekend, but a few folks I spoke with suggested it would be almost silly to imagine Prez Obama nominating a GOP elected official.  But, this Washington Post article, headlined "Republican governor of Nevada Brian Sandoval being considered for Supreme Court," suggests that at least a few Beltway insiders are having silly thoughts similar to mine.  Here are the basics with the Post:

Brian Sandoval, the centrist Republican governor of Nevada, is being vetted by the White House for a possible nomination to the Supreme Court, according to two people familiar with the process. Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday pledged “no action” on any Supreme Court nomination before November’s election, saying the decision ought to be left to the next president. The White House declined to comment Wednesday for this story. White House press secretary Josh Earnest has emphasized in recent days that the president has not arrived at a short list of potential nominees.

The nomination of a GOP governor — albeit one with a bipartisan record — could break that resolve.

Sandoval met Monday with Senate Minority Leader Harry M. Reid, a fellow Nevadan with whom he enjoys cordial relations. A person familiar with the conversation said that while Sandoval told Reid he had not made a final decision on whether he would accept a Supreme Court nomination, he would allow the vetting process to move forward. Another person in Nevada familiar with the process confirmed that the process is underway....

It is unclear how many potential nominees are undergoing White House vetting for the high court vacancy left by Justice Antonin Scalia’s death. Obama was seen last week carrying a thick binder of materials on potential picks to review.

Obama outlined his thinking in a guest posting on SCOTUSblog Wednesday [available here]: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”

Some Democrats believe that nominating Sandoval could fracture the front of Republican opposition and force McConnell to take up the nomination in this contentious election year. It would also put on the spot a handful of Senate Republicans who are up for reelection in blue states in November.

The Senate unanimously confirmed Sandoval as a district court judge in 2005 after he was nominated by President George W. Bush. The Nevada Republican stepped down from the bench in 2009 to run for governor and is now counted among the most popular governors in the nation. He also represents a swing state with a heavy concentration of Latinos who will be important in the presidential race.

One Republican who is considered likely to support Sandoval if nominated is Nevada’s junior senator, Dean Heller. Heller suggested in a statement last week that the “chances of approving a new nominee are slim” but he did not discourage Obama from putting forth a nominee. “[W]ho knows, maybe it’ll be a Nevadan,” he said — a comment widely interpreted as signaling his support for Sandoval.

But nominating Sandoval would carry risks for Obama. Sandoval is aligned with Democrats on some key issues, including abortion rights and the environment. As governor, he has moved to implement the Affordable Care Act, and has said he considers same-sex marriage to be a settled issue. But Sandoval is not seen as labor-friendly — potentially alienating a swath of the Democratic base. His legal credentials are also lacking compared to some of the other names under consideration who are mainly sitting federal judges.

A Senate confirmation of Sandoval through this year could deny a Democratic successor to Obama, whether Hillary Clinton or Bernie Sanders, the opportunity to nominate a more orthodox liberal to the court and cement an ideological shift in its jurisprudence. Asked by The Morning Consult in a brief interview Saturday about a potential nomination, Sandoval said, “It would be a privilege,” calling the Supreme Court “the essence of justice in this country.”...

As governor, Sandoval alienated many conservatives by accepting the Medicaid expansion that was a cornerstone of Obama’s Affordable Care Act, and one of his recent budgets, passed over the opposition of many Republicans in the legislature, included tax hikes designed to boost funding for the state’s notoriously under-performing public schools.

One big reason I was thinking about blogging about Gov Sandoval even before this news broke is the fact that he received his law training at the law school where I now teach: The Ohio State University Moritz College of Law.  Because Gov Sandoval graduated in 1989 from OSU College of Law, he was at "my" law school roughly a decade before I started teaching here. But he has long been an OSU alum whose career I have closely followed, and I have had the pleasure to meet Gov Sandoval a few times. (In addition, no doubt because Gov Sandoval became a US District Court judge not long after the Booker decision, he mentioned once that he was familiar with this blog.)

Though it may be a waaaay too premature to get too excited about the prospect of a Justice Sandoval, folks interested in know more about his personal background and his family's many links to Ohio State should check out this article from our OSU College of Law alumni magazine. Here is an excerpt that perhaps will help others join me in considering Gov Sandoval as a very appealing possible SCOTUS nominee:

Sandoval returned to Moritz on March 15 to share his thoughts on leadership as the keynote speaker for the Program on Law and Leadership’s Fifth Annual Speaker Series. The former Nevada attorney general, state legislator, and federal judge spoke in detail about “transformational” and “ser­vant” leadership. “You can never go wrong when you make prin­cipled decisions,” he said. “Don’t take shortcuts.”

Sandoval grew up in Sparks, Nev., where he raised sheep and sold wool for spending money as a child. His mother, a legal secretary, often took him to work. Sandoval said his first job outside of selling wool was working in the cafeteria of a federal courthouse.

He graduated from the University of Nevada, Reno in 1986 and chose The Ohio State University for law school over the University of California Hastings College of Law in San Francisco. Sando­val’s brother, Ron, was in veterinary school at Ohio State when Sandoval made the decision to come to Columbus. “I had never set foot in Ohio,” he said. The brothers started somewhat of a family tradition: Their mother, Teri Sandoval, would later earn her Ph.D. in education from Ohio State.

Sandoval returned to Nevada after graduation and entered public life shortly thereafter. He was elected to serve in the Nevada Legislature in 1994 and became the youngest state gaming commis­sion chairman a few years later, at age 35.

Sandoval became the first Hispanic elected to statewide office in Nevada when he was elected attorney general in 2002. It was the first of many such designations: Sandoval is Nevada’s first Hispanic governor and became its first Hispanic federal judge when he was appointed to the bench by President George W. Bush in 2005. “I wish I wasn’t the first. It shouldn’t have taken this long,” he said.

Sandoval credits the help of mentors, including former Nevada Gov. Kenny Guinn and longtime Nevada state legislator William Raggio, for inspir­ing him to think longterm and “make the right decision, not the popular decision” when faced with tough challenges. Sandoval encountered plenty during his first stint in statewide office.

His first week as attorney general had him fac­ing journalists during a press conference on one of the most pressing issues of his tenure: Yucca Mountain. As attorney general, Sandoval led the state’s efforts to prevent the federal government from storing nuclear waste at the site. During his first year in the Attorney General’s Office, a budget stalemate at the statehouse resulted in a crisis that threatened to leave public schools unfunded as lawmakers failed to reach the two-thirds supermajority the state required for any tax increase.

At the request of then-Gov. Guinn, his office sought a writ of mandamus to force the Legislature to pass a budget. The case ended up before the Supreme Court of Nevada, which granted the writ and ordered the Legislature to pass a budget by simple majority. The outcome drew protest from some GOP leaders.

Sandoval, a Republican, said he remembered the advice of his mentors – thinking of long-term effects and making principled, sometimes un­popular decisions – whenever he took heat from members of his own party. “It was important to me that (the attorney gen­eral’s office) be a law office, not a political office,” he said.

Prior related posts on new SCOTUS nominee possibilities:

UPDATE on Feb. 25: Gov. Sandoval, according to this new local press report, "took his name out of consideration Thursday for a possible nomination to the U.S. Supreme Court." Oh well, I guess I now have to go back to rooting for the elevation of Sixth Circuit Judge (and former Justice Scalia clerk) Jeff Sutton to bring a Buckeye law degree to a seat on the Supreme Court. And I also now need to be thinking about the next new name to consider as a short-lister for Prez Obama.

February 24, 2016 in Who Sentences? | Permalink | Comments (8)

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?

Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism."  I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis).  More to the point, as I have flagged in prior posts here and  on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.

But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues.  He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice.  He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog).  Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.  

I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true).  Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.  

Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems.   Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts.  Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.

With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.

February 24, 2016 in Clemency and Pardons, Federal Sentencing Guidelines, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Vera Institute of Justice launches "The Human Toll of Jail"

6a00d83451574769e201bb08323a26970dI received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:

The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others.  Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails.  Stories in the project include:

  • INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.

  • RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son.  His story is told here as comics journalism.

  • THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success.  The result is a jail that looks nothing like the ones you’ve seen on TV.

  • A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.

  • JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.

February 24, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

"Why and How the Supreme Court Should End the Death Penalty"

The title of this post is the title of this new article by Kenneth Williams recently posted to SSRN. Here is the abstract:

In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty.  The purpose of this article is to contribute to that discussion.

The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years.  Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline.  The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty.  The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer.  Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty.

The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place.  The Court could choose to abolish the death penalty for one of several reasons.  First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application.  Second, there are several Eighth Amendment grounds upon with the Court could rely.  For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.”  The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.”  Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.

February 24, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, February 23, 2016

Former UN Secretary-General Kofi Annan explains "Why It's Time to Legalize Drugs"

This new Huffington Post commentary, titled "Why It's Time to Legalize Drugs," is authored by Kofi Annan, who served as Secretary-General of the United Nations from 1997 to 2006. Here is part of his pitch:

Nowhere is [the] divorce between rhetoric and reality more evident than in the formulation of global drug policies, where too often emotions and ideology rather than evidence have prevailed.

Take the case of the medical use of cannabis. By looking carefully at the evidence from the United States, we now know that legalizing the use of cannabis for medical purposes has not, as opponents argued, led to an increase in its use by teenagers. By contrast, there has been a near tripling of American deaths from heroin overdoses between 2010 and 2013, even though the law and its severe punishments remain unchanged.

This year, between April 19 and 21, the United Nations General Assembly will hold a special session on drugs and the world will have a chance to change course. As we approach that event, we need to ask ourselves if we are on the right policy path. More specifically, how do we deal with what the United Nations Office on Drugs and Crime has called the "unintended consequences" of the policies of the last 50 years, which have helped, among other things, to create a vast, international criminal market in drugs that fuels violence, corruption and instability? Just think of the 16,000 murders in Mexico in 2013, many of which are directly linked to drug trafficking.

Globally, the "war on drugs" has not succeeded. Some estimate that enforcing global prohibition costs at least $100 billion (€90.7 billion) a year, but as many as 300 million people now use drugs worldwide, contributing to a global illicit market with a turnover of $330 billion a year, one of the largest commodity markets in the world.

Prohibition has had little impact on the supply of or demand for drugs. When law enforcement succeeds in one area, drug production simply moves to another region or country, drug trafficking moves to another route and drug users switch to a different drug. Nor has prohibition significantly reduced use. Studies have consistently failed to establish the existence of a link between the harshness of a country's drug laws and its levels of drug use. The widespread criminalization and punishment of people who use drugs, the over-crowded prisons, mean that the war on drugs is, to a significant degree, a war on drug users -- a war on people.

Africa is sadly an example of these problems. The West Africa Commission on Drugs, which my foundation convened, reported last year that the region has now become not only a major transit point between producers in Latin America and consumers in Europe, but an area where consumption is increasing. Drug money, and the criminality associated with it, is fostering corruption and violence. The stability of countries and the region as a whole is under threat.

I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more. We all want to protect our families from the potential harm of drugs. But if our children do develop a drug problem, surely we will want them cared for as patients in need of treatment and not branded as criminals.

February 23, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (4)

Latest notable comments by Attorney General Lynch about sentencing reform developments

ImagesVia email alert,I received notice that AG Loretta Lynch is giving this lengthy speech today in DC at the at the National Association of Attorneys General Annual Winter Conference. The speech covers a lot of federal and state criminal justice issues, and this section concerning sentencing policies and reform seemed worth spotlighting here:

Through the Smart on Crime initiative — launched by my predecessor, Eric Holder, in 2013 — we’re directing our prosecutorial resources at the most serious crimes, while investing in diversion and treatment programs like drug courts and veteran’s courts.  And we’re placing a renewed focus on rehabilitation and reentry in order to reduce recidivism, promote public safety and ensure that formerly incarcerated individuals can return to their communities as productive citizens with a meaningful new chance at a better life.

As we all know, improving rehabilitation programs and reentry outcomes doesn’t just help formerly incarcerated individuals; it’s also good for our communities as a whole.  More than 600,000 people are released from federal, state and local prisons every year and their ability to stay on the right path and stay out of the criminal justice system has a tremendous impact on the safety of our neighborhoods and the strength of our nation.  That’s why the Federal Interagency Reentry Council, which I am proud to chair, has brought together more than 20 federal agencies to curb recidivism and foster better prospects for employment, education, housing, healthcare and child welfare.  It’s why the Department of Justice is forging partnerships with the Departments of Education, Labor, Housing and Urban Development and others to boost opportunities for formerly incarcerated individuals and eliminate unnecessary collateral consequences of incarceration.  And it’s why our Office of Justice Programs has offered nearly 750 Second Chance Act grants since 2009, totaling more than $400 million to support reentry efforts in 49 states.

Beyond these and other efforts at the Department of Justice, we are working with Congress to support meaningful legislation that combines front-end sentencing reforms and back-end corrections reforms.  Over the past several months, we’ve seen important progress: sentencing and corrections legislation has been reported out of both the House and Senate Judiciary Committees and both Democrats and Republicans in the House and Senate have spoken out about the pressing need for reform.  The Department of Justice will continue to support federal sentencing laws that reduce the overreliance on mandatory-minimum sentences and improve federal probation and supervised-release programs.

Of course, the Department of Justice and the Obama Administration cannot do this work alone.  As the chief law enforcement officers of this country’s states and territories, you have the ability to bring about much-needed change. Over the past several years, many of you have led the way in helping enact justice system reforms in your own jurisdictions.  This Administration has supported your work through efforts like the Justice Reinvestment Initiative (JRI), which helps states identify the drivers of rising corrections costs and develop solutions to reduce spending and increase public safety.  JRI is currently active in 24 states and the experiences of states like Georgia and North Carolina demonstrate that JRI-involved states can both achieve significant reform — including reductions to incarceration rates — and produce savings while simultaneously enhancing public safety.  Since 2011, Georgia’s prison population has dropped by 8 percent, instead of growing by 8 percent as projected, saving funds and reducing crowding.  North Carolina’s prison population has decreased by almost 3,400 people since 2011 and the state has used savings from the closure of 10 prisons to add 175 probation and parole officers and to invest in intervention and treatment programs.  At the same time, North Carolina’s crime rate has plunged 11 percent.

We will continue to support programs like JRI — and additional efforts that seek to make our criminal justice system more efficient, more effective and more fair across the board.  In fact, President Obama’s budget for this coming fiscal year would invest $500 million in states’ comprehensive criminal justice reform efforts as part of the “21st Century Justice Initiative” — supporting a range of projects, from improving policing, to reducing unnecessary incarceration, to bolstering re-entry services.  This is an exciting and groundbreaking initiative and I am hopeful that Congress will move forward in support of its goals.

February 23, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Federal district judge in Nebraska calls 10-year mandatory prison sentence for drug offender "absolutely ridiculous"

This local article from the Lincoln Journal Star, headlined "Judge: 10-year sentence is 'absolutely ridiculous'," reports on a notable comments from a federal district judge as he sentenced a seemingly low-level drug offender to a decade in federal prison. Here are the basics from the start and end of the lengthy article:

On a recent Friday in a federal courtroom in Lincoln, a federal judge spoke critically about the 10-year sentence he was on the verge of handing down to the Lincoln man, a nonviolent, recovering meth user. U.S. District Judge John Gerrard's hands were tied.

"The only reason I'm imposing the sentence that I am imposing today is because I have to," he told Leo Guthmiller III on Feb. 12. "That's what Congress mandates." He called Guthmiller, the man at the defense table, Exhibit A for why Congress should pass the Smart on Crime Act. Last June, in a similar case, he called Robyn Hamilton the poster child for it.

In both of the cases, Gerrard, a former Nebraska Supreme Court justice nominated to the federal bench by President Barack Obama in 2011, said the sentence didn't fit the crime. There should be imprisonment, he said, but 10 years in cases like these is ridiculous, draconian even....

[O]n Feb. 12, federal public defender John Vanderslice said Guthmiller got arrested June 20, 2013, at a Lincoln Walmart with a small amount of methamphetamine on him, got accepted into the Lancaster County Drug Court on the state charge and has been clean and sober ever since.

Guthmiller thought drugs were in his past, then, in 2015, he was federally indicted for being part of a conspiracy to distribute methamphetamine in Lincoln back in 2013 for introducing people who were buying and selling it and sometimes getting a cut for it. He pleaded guilty.

"This war on drugs that we are waging in this country with mandatory minimum sentences as applied to a person like Mr. Guthmiller, it's tragic," Vanderslice said at the sentencing. He said it's turned Guthmiller's life upside down.

An emotional Guthmiller apologized for all his past transactions "and everything that's led me to this moment in my life."

"I have worked really hard to turn my life around," he said. "And I'm proud to say that even with all this present stuff facing me that I will continue to do so."

Then, Gerrard handed down his sentence, saying there "should be just punishment, respect for the law. But a 10-year sentence is absolutely ridiculous in a case like this. But there may be another day in court at some point in time." He allowed Guthmiller to report to prison in April.

February 23, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, February 22, 2016

"On first day without Scalia, Supreme Court faces a possible tie vote" ... in a criminal procedure, Fourth Amendment case

The title of this post is drawn in part from this USA Today article's headline reporting on oral argument today in the Supreme Court in a Fourth Amendment case, Utah v. Strieff.  I thought to flag this story not only because it suggests the now-short-staffed Supreme Court may be unable to resolve tough criminal procedural cases, but also because Strieff might provide an early clue in the coming weeks concerning how the Chief Justice and his colleagues may try to handle divided cases while short-staffed.  Here is how the press report starts:

Without Antonin Scalia's potential tie-breaking vote, the Supreme Court appeared split down the middle Monday in a case that could impact the way police stop and search suspects.

The court's liberal and conservative members took opposite sides in the case — a relatively frequent occurrence, but one that now could produce 4-4 deadlocks in the wake of Scalia's unexpected death Feb. 13. Such verdicts would uphold decisions reached by lower courts without setting any national precedent.

The case involves a Utah police officer's detention of a man leaving a house that was under observation for possible drug-dealing. Based on the discovery of an outstanding arrest warrant for a minor traffic infraction, the man was searched and found to have illegal drugs. The Utah Supreme Court ruled that the initial stop was illegal and the discovery of the arrest warrant insufficient to justify the search and arrest, prompting Utah to appeal.

Of course, there are many times when, even after the Justices appeared deeply divided at oral argument, they ultimately do not split 5-4 (or in this case 4-4) when it comes time to vote on a case's resolution.  And folks interested in reading for themselves how divide the Justice were this morning can find the argument transcript for Utah v. Strieff at this link.

February 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)