Sunday, February 12, 2017
Is big data "reinforcing racial bias in the criminal justice system"?
The question in this post is prompted by this Washington Post commentary headlined "Big data may be reinforcing racial bias in the criminal justice system." The piece is authored by Laurel Eckhouse, a researcher with the Human Rights Data Analysis Group’s Policing Project at UC Berkeley, and here are excerpts:
Big data has expanded to the criminal justice system. In Los Angeles, police use computerized “predictive policing” to anticipate crimes and allocate officers. In Fort Lauderdale, Fla., machine-learning algorithms are used to set bond amounts. In states across the country, data-driven estimates of the risk of recidivism are being used to set jail sentences.
Advocates say these data-driven tools remove human bias from the system, making it more fair as well as more effective. But even as they have become widespread, we have little information about exactly how they work. Few of the organizations producing them have released the data and algorithms they use to determine risk.
We need to know more, because it’s clear that such systems face a fundamental problem: The data they rely on are collected by a criminal justice system in which race makes a big difference in the probability of arrest — even for people who behave identically. Inputs derived from biased policing will inevitably make black and Latino defendants look riskier than white defendants to a computer. As a result, data-driven decision-making risks exacerbating, rather than eliminating, racial bias in criminal justice....
We know that a black person and a white person are not equally likely to be stopped by police: Evidence on New York’s stop-and-frisk policy, investigatory stops, vehicle searches and drug arrests show that black and Latino civilians are more likely to be stopped, searched and arrested than whites. In 2012, a white attorney spent days trying to get himself arrested in Brooklyn for carrying graffiti stencils and spray paint, a Class B misdemeanor. Even when police saw him tagging the City Hall gateposts, they sped past him, ignoring a crime for which 3,598 people were arrested by the New York Police Department the following year.
Before adopting risk-assessment tools in the judicial decision-making process, jurisdictions should demand that any tool being implemented undergo a thorough and independent peer-review process. We need more transparency and better data to learn whether these risk assessments have disparate impacts on defendants of different races. Foundations and organizations developing risk-assessment tools should be willing to release the data used to build these tools to researchers to evaluate their techniques for internal racial bias and problems of statistical interpretation. Even better, with multiple sources of data, researchers could identify biases in data generated by the criminal justice system before the data is used to make decisions about liberty. Unfortunately, producers of risk-assessment tools — even nonprofit organizations — have not voluntarily released anonymized data and computational details to other researchers, as is now standard in quantitative social science research.
For these tools to make racially unbiased predictions, they must use racially unbiased data. We cannot trust the current risk-assessment tools to make important decisions about our neighbors’ liberty unless we believe — contrary to social science research — that data on arrests offer an accurate and unbiased representation of behavior. Rather than telling us something new, these tools risk laundering bias: using biased history to predict a biased future.
Looking at Ohio Gov Kasich's clemency record and those of his predecessors
This local article, headlined "Kasich stays conservative with pardons," discusses how my Governor has recently used his clemency powers. Here are the details:
Gov. John Kasich used his executive clemency power a little more in 2016 than in previous years, but remains the most conservative governor in 30 years in granting commutations, pardons and reprieves for criminal sentences.
Kasich, a Republican now in his seventh year as governor, approved 18 of 526 requests for clemency last year, slightly more than 3 percent. He approved just two of 244 requests in 2014. The 18 cases approved last year included one in which the Florida man seeking clemency for a 41-year-old Ohio crime died after filing the application; Kasich approved the pardon posthumously.
Statistics obtained by The Dispatch from a public-records request made annually to the governor's office do not include death-penalty cases, such as those granted on Friday when Kasich granted reprieves to move back eight scheduled executions in response to a court order.
In six years in office, Kasich approved 86 of 2,291 requests to reach his desk, about one in 26.
Ohio governors have nearly unlimited clemency power in criminal cases after the Ohio Adult Parole Authority has made a recommendation in a case. The governor does not have to agree with the parole board's decision, but he did in all 13 cases he approved last year.
The clemencies approved by Kasich were all for old, mostly non-violent crimes. All were pardons, which is "an act of grace or forgiveness that relieves the person pardoned from some or all of the ramifications of lawful punishment," according to the Ohio Department of Rehabilitation and Correction....
Kasich agreed with the parole board in all but eight of 526 cases last year. In the eight cases, he denied clemency where the parole board recommended it.
In the three decades that Ohio has tracked gubernatorial clemency, governors have used the power in different ways, sometimes reflecting personal, political or ideological persuasions. Ted Strickland, a Democrat who preceded Kasich as governor, approved 20 percent of 1,615 clemency requests that he handled between 2007 and 2011. Most cases involved low-level, nonviolent offenses, but he commuted five death-penalty sentences to life in prison without parole....
Republicans George V. Voinovich, governor from 1991 to '98, and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests received. James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.
Democrat Richard F. Celeste, governor from 1983 to 1991, touched off a legal battle in the final days of his second term when he commuted the death sentences of eight men and granted clemency to 25 female prisoners who were victims of battered-woman syndrome. As a result of Celeste's actions, the General Assembly changed the law to require governors to have a recommendation from the parole board before making a clemency decision.
Saturday, February 11, 2017
A (crazy) harsh sentence for a voter fraud conviction in Texas
According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use). In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime. The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:
Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.
That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.
The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.
“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”
The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.
Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.
Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....
Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.
Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.
As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”
Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.
Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.
Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...
Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.
Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”
Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”
Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation
As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:
The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.
The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.
"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."
Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.
The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.
Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.
Friday, February 10, 2017
Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again
As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:
Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.
Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.
Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.
Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.
The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.
The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.
“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.
Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....
Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.
Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests
A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement. Here is the start of the opinion and a key paragraph from its heart:
We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement. For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative. However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.
Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....
In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty. Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row. The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.
Thursday, February 9, 2017
Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”
As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:
The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.
“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...
The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.
The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.
I am intrigued by all three of these orders, but I want to read the full orders before I comment on these. Helpfully, the White House now has them available via these links:
Noting the concerns prompted by aging sex offenders
This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:
As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care. In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.
A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio. This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.
The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.
Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care. “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.
The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.
Wednesday, February 8, 2017
Jeff Sessions confirmed as Attorney General ... now what for federal sentencing policies and practices?
As Fox News reports here, "Sen. Jeff Sessions won confirmation Wednesday evening to become the next attorney general of the United States," and here's more of the basic backstory:
The Senate narrowly approved the Alabama Republican’s nomination on a 52-47 vote, the latest in a series of confirmation votes that have been dragged out amid Democratic protests. One Democrat, Joe Manchin of West Virginia, joined Republicans in voting to confirm Sessions. Sessions himself voted present.
In his farewell address Wednesday evening, Sessions urged his erstwhile colleagues to get along better following days of bruising debate. "We need latitude in our relationships," Sessions said. "Denigrating people who disagree with us is not a healthy trend for our body."...
Wednesday’s vote came after a rowdy overnight session during which Sen. Elizabeth Warren, D-Mass., was formally chastised for allegedly impugning Sessions’ integrity on the floor. Warren had read a letter authored in 1986 by Coretta Scott King, who was against Sessions’ nomination at the time to the federal bench, arguing he used the power of his office to “chill” black voting rights. Warren also quoted the late Sen. Ted Kennedy, D-Mass., who originally had entered King’s letter into the record, describing Sessions as “disgraceful.”
GOP Senate leaders said Warren had violated Senate rules and should lose her speaking privileges. In a remarkable scene, the Senate then voted 49-43 to suspend Warren’s speaking privileges for the rest of the nomination process – the first time the Senate has imposed such a punishment in decades.
Democrats had repeatedly contended that Sessions is too close to Trump, too harsh on immigrants, and weak on civil rights for minorities, immigrants, gay people and women. Sessions was a prominent early backer of Trump, a supporter of his hard line on illegal immigration and joined Trump's advocacy of a wall along the U.S.-Mexico border....
Republicans argued Sessions has demonstrated over a long career in public service, including two decades in the Senate, that he possesses integrity, honesty, and is committed to justice and the rule of law.
Everyone interested in federal sentencing law, policy and reform as well as all federal sentencing practitioners now must wonder what exactly an Attorney General Sessions will mean for federal sentencing policies and practices emerging from the U.S. Department of Justice. (Over at Marijuana Law, Policy and Reform, I made the same point with respect to federal marijuana policies.)
I am expecting and somewhat fearing the possibility that AG Sessions will be eager, though new memoranda to US Attorneys, to ramp up application of mandatory minimums in a variety of settings. AG Sessions can formally and informally push for "tough and tougher" sentencing policies in lots of other ways as well, and it will be interesting to see whether and how he does in the weeks and months ahead.
Prez Trump talks crime and support for law enforcement with police chiefs . . . and says some interesting things
Prez Donald Trump gave this lengthy speech to a gathering of major city police chiefs, and he had a lot to say about crime and law enforcement toward its conclusion (after an extended Trumpian discussion of the litigation surrounding his travel executive order). Here is some of what the Prez has to say on the crime front (with a few points of emphasis added based on what struck me as especially interesting):
Right now, many communities in America are facing a public safety crisis. Murders in 2015 experienced their largest single-year increase in nearly half a century. In 2016, murders in large cities continued to climb by double digits. In many of our biggest cities, 2016 brought an increase in the number of homicides, rapes, assaults and shootings. In Chicago, more than 4,000 people were shot last year alone, and the rate so far this year has been even higher. What is going on in Chicago?
We cannot allow this to continue. We’ve allowed too many young lives to be claimed -- and you see that, you see that all over -- claimed by gangs, and too many neighborhoods to be crippled by violence and fear. Sixty percent of murder victims under the age of 22 are African American. This is a national tragedy, and it requires national action. This violence must end, and we must all work together to end it.
Whether a child lives in Detroit, Chicago, Baltimore, or anywhere in our country, he or she has the right to grow up in safety and in peace. No one in America should be punished because of the city where he or she is born. Every child in America should be able to play outside without fear, walk home without danger, and attend a school without being worried about drugs or gangs or violence.
So many lives and so many people have been cut short. Their potential, their life has been cut short. So much potential has been sidelined. And so many dreams have been shattered and broken, totally broken. It’s time to stop the drugs from pouring into our country. And, by the way, we will do that. And I will say this: General, now Secretary, Kelly will be the man to do it, and we will give him a wall. And it will be a real wall. (Applause.) And a lot of things will happen very positively for your cities, your states, believe me. The wall is getting designed right now....
It’s time to dismantle the gangs terrorizing our citizens, and it’s time to ensure that every young American can be raised in an environment of decency, dignity, love and support. You have asked for the resources, tools and support you need to get the job done. We will do whatever we can to help you meet those demands. That includes a zero tolerance policy for acts of violence against law enforcement. (Applause.) We all see what happens. We all see what happens and what’s been happening to you. It’s not fair.
We must protect those who protect us. The number of officers shot and killed in the line of duty last year increased by 56 percent from the year before. Last year, in Dallas, police officers were targeted for execution –- think of this. Who ever heard of this? They were targeted for execution. Twelve were shot and five were killed. These heroic officers died as they lived -– protecting the innocent, rushing into danger, risking their lives for people they did not even know, but for people that they were determined to save. Hats off to you people....
[I]nstead of division and disunity -- and which is so much disunity -- we must build bridges of partnership and of trust. Those who demonize law enforcement or who use the actions of a few to discredit the service of many are hurting the very people they say that they want to help. When policing is reduced, crime is increased, and our poorest citizens suffer the most. And I see it all the time. When the number of police goes down, crime goes up.
To build needed trust between law enforcement and the communities they serve, it is not enough for us to merely talk to each other. We must listen to each other. All of us share the view that those in uniform must be held to the highest possible standard of conduct -- so important. ...
That is why our commitment to law and law enforcement also includes ensuring that we are giving departments the resources they need to train, recruit and retain talent. As part of our commitment to safe communities, we will also work to address the mental health crisis. Prisons should not be a substitute for treatment. We will fight to increase access to life-saving treatment to battle the addiction to drugs, which is afflicting our nation like never ever before -- ever. (Applause.)
I've been here two weeks. I've met a lot of law enforcement officials. Yesterday, I brought them into the Oval Office. I asked a group, what impact do drugs have in terms of a percentage on crime? They said, 75 to 80 percent. That's pretty sad. We're going to stop the drugs from pouring in. We're going to stop those drugs from poisoning our youth, from poisoning our people. We're going to be ruthless in that fight. We have no choice. (Applause.)
And we're going to take that fight to the drug cartels and work to liberate our communities from their terrible grip of violence. You have the power and knowledge to tell General Kelly -- now Secretary Kelly -- who the illegal immigrant gang members are. Now, you have that power because you know them, you're there, you're local. You know the illegals, you know them by their first name, you know them by their nicknames. You have that power. The federal government can never be that precise. But you're in the neighborhoods -- you know the bad ones, you know the good ones.
I want you to turn in the bad ones. Call Secretary Kelly's representatives and we'll get them out of our country and bring them back where they came from, and we'll do it fast. You have to call up the federal government, Homeland Security, because so much of the problems -- you look at Chicago and you look at other places. So many of the problems are caused by gang members, many of whom are not even legally in our country.
I saw a few folks tweeting concerns this morning about Prez Trump's statement that we are "going to be ruthless in that fight" against "drugs from poisoning our youth, from poisoning our people." And, with coming likely confirmation of AG Jeff Sessions, there is a very reasonable basis for fearing that the Trump Administration is going to seek to double-down on old tough-and-tougher approaches to the drug war. But given some of the other Trump comments highlighted here (particular the comment that "prisons should not be a substitute for treatment"), I am holding out at least some hope that some nuance will be a part of the particulars of any new Trumpian drug war offensive.
New report details stability of California crime rates during period of huge sentencing reform
This new Fact Sheet produced by the Center on Juvenile and Criminal Justice tells and interesting and important story about crime in California. The main prose of the report provides the data highlights:
Newly released Federal Bureau of Investigation (FBI) statistics for the first six months of 2016 show California’s reported urban crime rate remained stable from 2010 through 2016, despite the implementation of large-scale criminal justice reforms during that period.
• Total urban crime fell in the first half of 2016 compared to the first half of 2015.
The first six months of 2016 saw a decline in California’s urban crime rate compared to the first six months of 2015, though trends in specific crime categories were wide-ranging. During this period, reported crime declined 3 percent overall, driven by a 4 percent reduction in property offenses. Burglary, arson, and theft decreased, while vehicle theft increased, resulting in approximately 7,400 fewer property offenses in early 2016. At the same time, violent crime rose 4 percent, with total violent offenses increasing by approximately 2,800 from early 2015 to early 2016.1
• The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.
Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A). Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent (see Table 1).
• Historically low urban crime rates have persisted through an era of justice reform.
Crime rates have remained low and stable through several major criminal justice reforms, particularly Public Safety Realignment and Proposition 47. Realignment, which was enacted in 2011 through Assembly Bill 109, shifted responsibility for those with nonviolent, non-sexual, and non-serious convictions from the state to the county in an attempt to reduce prison populations. In 2014, California voters passed Prop 47, which reduced six minor drug and property felonies to misdemeanors, prompting the resentencing and release of thousands from jails and prisons across the state. Though each policy was met with some initial concerns over public safety, a seven-year view of the data suggests that no visible change in crime resulted from Realignment (CJCJ, 2015). More data are needed before drawing conclusions about Prop 47’s effect on crime (CJCJ, 2016).
Tuesday, February 7, 2017
"How States Can Take a Stand Against Prison Profiteers"
The title of this post is the title of this paper newly posted to SSRN and authored by Catherine Elizabeth Akenhead. Here is the abstract:
In recent years, state corrections departments have faced pressure to provide better prison conditions, while simultaneously cutting costs. Many critics have touted the emergence of privatized prison services as a cost-effective resolution. However, those services shift the costs on to some of the poorest and most vulnerable consumers, prisoners and their families. This Note explores how private companies providing prison banking services to state correctional facilities use unfair practices to increase profits. The umbrella of prison banking services includes deposits into inmate trust accounts, which allow prisoners to purchase necessities, as well as prepaid debit release cards, which are used to return money to prisoners upon release. This Note describes how certain private companies retain a monopoly on these services, and are awarded contracts based on the amount of commission paid to state correctional facilities.
As a result of paying those commissions and having no incentive to cut costs, private companies drive up their prices and charge consumers exorbitant rates to make deposits or to utilize prepaid cards. These practices are disproportionately affecting prisoners’ families who provide their incarcerated loved ones with monetary support, as well as released inmates struggling to get back on their feet post-incarceration. Statistically speaking, both of these groups are more likely to be low-income and least able to manage additional financial strain. This Note proposes state-level legislation to better protect consumers from these abuses and outlines five key provisions that, if adopted, will serve to prevent private companies from increasing their profit margins at the expense of vulnerable consumers.
Prez Trump in sheriffs meeting expresses support for broad civil forfeiture police powers
This Washington Post report details the notable joke Prez Trump made regarding a state legislator who apparently wants to limit police civil forfeiture powers, and highlights the broader issues raised by the surrounding discussion. Here are the details:
At a meeting on Tuesday with sheriffs from across the country, President Trump joked about destroying the career of an unnamed Texas state senator who supported curtailing a controversial police practice for seizing people's property....
Sheriff Harold Eavenson of Rockwall County, Tex., brought up the issue of civil asset forfeiture, which allows authorities to seize cash and property from people suspected, but in some cases never convicted or even charged, with a crime. Eavenson told Trump of a “state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.”
“Can you believe that?” Trump interjected. “And,” Eavenson went on, “I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”
“Who's the state senator?” Trump asked. “Do you want to give his name? We'll destroy his career,” he joked, to laughter from the law enforcement officials in the room....
While many people are unfamiliar with the practice, asset forfeiture is widespread. In 2014, federal authorities alone seized over $5 billion from suspected criminals, more than the total losses to burglary that year. That number doesn't even count seizures conducted by state and local law enforcement. Critics of asset forfeiture policies say the broad leeway afforded to law enforcement officers in most states creates a system ripe for abuse....
A 2015 ACLU investigation found that Philadelphia police routinely seized what amounted to “pocket change” from some of the city's poorest residents. A 2014 Washington Post investigation found that police seized $2.5 billion in cash from motorists not charged with crimes as part of a federal program.
When told of the practice, a large majority of Americans are opposed to it. A December 2016 survey by YouGov and the libertarian Cato Institute found that 84 percent of Americans oppose taking “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.”...
But law enforcement groups have been resolute in their support for the practice. They say seizing money from people not charged with crimes is sometimes necessary to protect public safety, particularly in cases where it may be hard to obtain a criminal conviction against a suspect.
Law enforcement groups often cast asset forfeiture as a tool for fighting drug kingpins and foreign drug cartels, as Sheriff Eavenson implied at the White House meeting. But reports of asset forfeiture abuse suffered by American citizens have become more common. Nonetheless, police have had great success in convincing state and federal lawmakers to uphold the practice.
President Trump has not spoken much about the practice, and the White House did not immediately return a request for comment. But Trump's nominee to lead the Justice Department, Sen. Jeff Sessions, has been an enthusiastic proponent of civil asset forfeiture. In a 2015 Senate hearing, Sessions said that “95 percent” of forfeitures involve suspects who have “done nothing in their lives but sell dope.”
February 7, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)
"The Death Penalty & the Dignity Clauses"
The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.
Now, 40 years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.
Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.
This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.
In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.
Might marijuana legalization "be inducing a crime drop" in US states?
The question in the title of this post is prompted by this notable new empirical article on SSRN titled "Crime and the Legalization of Recreational Marijuana" and authored by quartet of economists from the University of Bologna. Here is the abstract:
We provide first-pass evidence that the legalization of the cannabis market across US states may be inducing a crime drop. Exploiting the recent staggered legalization enacted by the adjacent states of Washington (end of 2012) and Oregon (end of 2014) we find, combining county-level difference-in-differences and spatial regression discontinuity designs, that the legalization of recreational marijuana caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012. We also find evidence that the legalization increased consumption of marijuana and reduced consumption of other drugs and both ordinary and binge alcohol.
Regular readers will not be surprised that I view the posting of this article as an excuse to provide a round-up of recent posts from my other blog, Marijuana Law, Policy and Reform:
Florida legislature finally moving toward really fixing its capital procedures after Hurst
As reported in this AP article, "with death penalty cases grinding to a halt across the state, the Florida Legislature is finally taking its first — and probably only steps — to fix the law so prosecutors can resume cases once again." Here is more:
Legislators are moving ahead with a measure that would require a unanimous jury verdict in cases where the death penalty is being sought. Just a year ago legislators rejected the idea, but the state Supreme Court last October struck down a 2016 law that said the death penalty could be imposed after a 10-2 jury vote.
A Senate panel on Monday approved a bill requiring a unanimous jury verdict and a similar measure is being considered in the state House. The legislation could be among the first bills passed and sent to Gov. Rick Scott when the session officially kicks off in March.
"It is important that we have an orderly system of justice in place for both families of victims and individuals charged with serious crimes," said Sen. Randolph Bracy, an Ocoee Democrat who sponsored the bill. "This legislation removes ambiguity from our death penalty statute, which will help reduce delays in due process for all parties involved in death penalty cases."
Bracy's bill, however, doesn't address other questions raised by recent court decisions, including whether or not the state's nearly 400 current death row inmates deserve a new sentencing hearing if a jury did not unanimously recommend the death penalty. Katie Betta, a spokeswoman for Senate President Joe Negron, said he wants to keep the legislation narrow to get it passed quickly....
Bracy wanted to amend his bill so all current death row inmates would be treated the same but said he didn't have the votes to get the proposal adopted. Sen. Jeff Clemens, a Lake Worth Democrat, complained that legislators should be taking a comprehensive look at the death penalty to avoid having to deal with the issue year after year. But he said that some legislators are concerned they would look "weak" on the death penalty.
The Senate Criminal Justice Committee reported that there are more than 300 death penalty cases pending across the state, including 66 that are now ready for trial. Prosecutors have put some of these trials on hold while they wait for the Legislature to act.
Monday, February 6, 2017
"A Theory of Differential Punishment"
The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:
A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.
The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified. We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.
Idaho judge includes celibacy for teen sex offender on intensive probation
As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:
“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.
The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.
Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.
The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”
The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”
Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.
But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.
Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition. “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.
“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”
I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.
February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison
This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent. The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:
A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening. The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.
Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said. The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.
Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.
Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire. Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.
Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time. Apparently that is not an issue for the folks at DRC," Schmidt said.
Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder. Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty.
I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.
"Why we should free violent criminals"
The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:
The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.
Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders. It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?
As for long sentences, it’s true that they play a role in driving prison growth. “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike. A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.
But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.
The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender. That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....
Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees. By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.
Whatever the cause, the impact has been enormous. The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s. One solution: legislate a reduction in prosecutorial power. Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.
Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.
Setting my DVR for "Solitary: Inside Red Onion State Prison"
HBO is premiering a notable new documentary tonight, "Solitary: Inside Red Onion State Prison." Here is how HBO describes the movie:
Located on an Appalachian mountaintop in Wise County, Va., Red Onion State Prison is a “supermax” facility built to house individual inmates in 8’x10’ solitary-confinement cells, 23 hours a day, for months, years and sometimes decades. Directed by Kristi Jacobson, Solitary: Inside Red Onion State Prison explores life on both sides of the bars, raising provocative questions about punishment in America today.
Drawing on unprecedented, unrestricted access, Solitary: Inside Red Onion State Prison was filmed over the course of one year, chronicling a new reform program intended to reduce the number of solitary-confinement inmates. The recently initiated “Step-Down Program” has allowed more than 350 inmates a chance to return to the general population. But all too often, after months of solitary isolation, prisoners are ill-equipped to deal with the stresses of being a part of the regular prison population – let alone life on the outside.
This unflinching, immersive documentary features intimate interviews with several inmates who reflect on their violent childhoods, open up about the dangers of prison life and articulate their struggles to maintain sanity in the unrelenting monotony and isolation of confinement. Interwoven with these stories are observations of corrections officers, who describe the toll their stressful jobs can take in a community with few employment opportunities.
Solitary: Inside Red Onion State Prison captures the chilling sounds and haunting atmosphere of daily life at Red Onion, focusing on the effect of loneliness and isolation on the prisoners’ mental health.
The filmmaker website has this little blurb to describe the movie:
SOLITARY is a daring exploration of the lives of inmates and corrections officers in one of America's most notorious supermax prisons, built to hold inmates in 8x10 cells, 23-hours-a-day, for months, years and sometimes decades. With unprecedented access, the film captures a complex, unexpected and deeply moving portrait of life inside.
Questions raised about Judge Gorsuch's law school work for Harvard Defenders and PLAP
The night Prez Trump nominated Judge Neil Gorsuch to be on the Supreme Court, I noted in this post that I found it notable that Prez Trump stated that "[w]hile in law school, he demonstrated a commitment to helping the less fortunate [by having] worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program." But this Wall Street Journal article, headlined "Few Recall Gorsuch’s Volunteer Work at Harvard: Questions arise over Trump Supreme Court pick’s level of participation in programs to help less fortunate while in law school," raises questions about the scope and significance of Judge Gorsuch's work in these organizations:
When President Donald Trump introduced his Supreme Court pick on live television last week, he said Neil Gorsuch had “demonstrated a commitment to helping the less fortunate” by working in the Harvard Prison Legal Assistance Project and the Harvard Defenders. His affiliation with these volunteer programs — which offer law school students real-life legal experience representing prison inmates and the poor — helped give Mr. Gorsuch’s deeply conservative résumé a personal touch, and the groups were highlighted in news reports about his nomination.
But roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard Law School from 1988 to 1991 said they have no recollection of his involvement. “If he was active in PLAP I am sure I would remember him,” said Elizabeth Buckley Lewis, who attended Harvard at the same time as Mr. Gorsuch. Now a New York City tax lawyer who advises nonprofits, she said PLAP was her “most meaningful experience” at Harvard.
The White House gave The Wall Street Journal the name of one Harvard Law School graduate who said he could corroborate that Judge Gorsuch was in the Defenders, but declined to give any details of the judge’s participation. The White House also provided copies of a 2008 email exchange between the Defenders’ alumni director and Judge Gorsuch.
Two people who broadly oversaw the students during this period said they had no memory of Judge Gorsuch’s involvement, a third one declined to say, and a fourth died in 1998. Other Harvard classmates and friends of Mr. Gorsuch say they have no recollection of him discussing either program. Memories can fade over 25 years, and the programs demanded no specific time commitment. Mr. Gorsuch didn’t respond to emailed questions.
The White House referred The Wall Street Journal to Chris Edel, a New York County prosecutor who said he attended a few weeks of training for the Defenders program with Judge Gorsuch in either 1990 or 1991. They also lived together and were members of the Lincoln’s Inn Society, a social club. “What I am prepared to do is corroborate that Neil Gorsuch was in the Harvard Defenders,” said Mr. Edel. “I have a specific recollection of talking to him about one case, but I don’t want to go into the details…I’d like to leave it there.” Mr. Edel recalled one other classmate in the program. David E. Nahmias, now a Georgia Supreme Court justice. Mr. Nahmias said he didn’t remember whether Mr. Gorsuch was involved in the Defenders.
In PLAP, students represent inmates at disciplinary and parole hearings. Defenders provide representation to indigent defendants. In both cases, students are guided by more experienced students and by supervising attorneys. PLAP and Defenders are volunteer programs and students don’t earn credit, so participation isn’t reflected on Harvard’s transcripts....
Not every official bio of Mr. Gorsuch names his involvement with the groups. But they are included in a biography posted online by President George W. Bush’s White House after the judge’s 2006 confirmation to a federal appeals court, as well as a White House press release at the time.
On a Senate questionnaire in connection with the 2006 judicial appointment, Mr. Gorsuch answered a question about “serving the disadvantaged” in part by saying he had done pro bono work beginning in law school, citing the two programs. He said he helped Massachusetts inmates “with respect to, among other things, hearings on disciplinary actions taken against them” and represented “defendants in criminal proceedings in Massachusetts state courts.” Mr. Gorsuch didn’t go further, despite the questionnaire’s request that nominees “describe specific instances and the amount of time devoted to each.”
Mr. Gorsuch was among the recipients of a Nov. 2, 2008, email sent to 124 alumni of the Defender program by Alicia Reed, then the alumni director of the Defenders, who was seeking volunteers to mentor Harvard students. Mr. Gorsuch, by then serving as an appeals court judge in Denver, responded the following day: “I don’t know if I can be of much help this far away from Cambridge, but if I can please do let me know. I found Defenders to be a very rewarding experience.”
Upon seeing the headline of the Wall Street Journal article, I was tempted to accuse Prez Trump of peddling "fake news" when he stressed Judge Gorsuch's involvement with these programs. But it seems that Prez Trump was only repeating a claim that Prez Bush made that it seems was reasonable based on reports by Judge Gorsuch himself. And my guess based on this WSJ reporting is that the Judge was involved in a few cases with both of these groups, but never made work with the groups a centerpiece of his Harvard Law experience the way that some other students did. My experiences a few years later with a could volunteer activities at Harvard Law was similar — e.g., for one journal and the newspaper, I was only involving in a few editing assignments — and I am sure that those who were most involved in those particular activities would not recall my limited involvement.
Prior related post:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
Saturday, February 4, 2017
"The Death Penalty as Torture From the Dark Ages to Abolition"
The title of this post is the title of this new book authored by John Bessler about to be published by Carolina Academic Press. Here is the blurb from the Press webpage:
During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture — from the thumbscrew and the rack to the Inquisition’s tools of torment — was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.
In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria — the father of the world’s anti–death penalty movement — condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.
In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.
Friday, February 3, 2017
Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population
As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:
Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.
Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.
Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.
Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.
In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.
Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.
Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.
Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.
Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.
Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....
If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."
Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.
That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said. Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....
The Oklahoma Attorney General's Office was noncommittal about the report. “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement. "The AG's office takes no position on the merits or demerits of the proposal.”
The full report is an interesting read and is available here at this link.
Lamenting that Henry Montgomery (and many other juve LWOPers) may not much or any benefit from Montgomery
Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined "Supreme Court's will on juvenile offenders thwarted." Here are excerpts:
A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.
The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.
But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.
I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.
Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles....
Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.
"Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"
The title of this post is the headline of this terrific extended commentary at The Crime Report authored by Caleb Mason. The piece does a wonderful job of reviewing many of the criminal jurisprudence highlights of Justice Scalia's three decades on the Supreme Court. And the start and end of the commentary explains why the author does not expect a Justice Gorsuch to be able to fully fill the shoes of Justice Scalia:
What’s the outlook for criminal-justice jurisprudence from the new Supreme Court, if Neil Gorsuch fills the late Justice Antonin Scalia’s seat?
It’s an interesting question, because, as I’ve written here before, Justice Scalia was genuinely idiosyncratic when it came to criminal cases. And the short answer is that Gorsuch won’t be another Scalia on criminal law, because no one can be. Scalia’s influence on criminal jurisprudence was powerful and multifaceted, and cut across the usual left-right voting divide on the Court.
Whether your perspective is defense or prosecution, you can say with conviction that Scalia was the driving force behind some of the best case law and some of the worst case law.
Here are some areas in which Scalia moved the law dramatically. On each of these issues, he argued vehemently for years before lining up the votes to shift doctrine....
In sum, Scalia was unique in his criminal-law jurisprudence. The weird mix of judicial impulses that led to the dramatic shifts in the law listed above is his and his alone. His criminal-law views didn’t predictably track right or left — though his hostility to court-created enforcement mechanisms was terrible for criminal defendants.
So now the question on everybody’s lips is whether Gorsuch is going to be Scalia-esque.
When it comes to criminal procedure and criminal law, I don’t think anyone is. If Judge Gorsuch is confirmed, he’ll have 30 years to forge his own judicial identity. And whoever he becomes on the Court, he won’t be another Scalia.
Some prior related posts:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
- Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
Thursday, February 2, 2017
House Judiciary Chair Goodlatte says sentencing reform is part of his agenda
As detailed in this press release, House Judiciary Committee Chairman Bob Goodlatte yesterday discussed his agenda for the 115th Congress in a speech given to the Federalist Society at the National Press Club. Only a small section of the prepared remarks addressed criminal justice and sentencing reform, but what was said was still somewhat encouraging:
The Judiciary Committee also has the solemn responsibility to ensure our laws are fair, efficient, and enforced. Under my leadership, the Committee will continue to advance an agenda that ensures our federal criminal laws are designed to appropriately punish wrongdoers, are effectively and appropriately enforced, safeguard civil liberties, increase public safety, and work as efficiently as possible.
Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.
Additionally, it’s imperative that we continually examine federal criminal laws to ensure they protect civil liberties while also providing law enforcement with the tools needed to fight crime and keep us safe.
One corrections officer dead as Delaware prison riot comes to end
As reported here, the "day-long hostage standoff inside Delaware’s largest state prison for men ended early Thursday after state police stormed the building, finding one corrections official dead and rescuing another who was being held hostage." Here is more:
The standoff began Wednesday at around 10:30 a.m. when inmates at the James T. Vaughn Correctional Center in Smyrna, about 40 miles south of Wilmington, took four corrections department workers — and possibly some fellow prisoners — hostage inside one of the facility’s buildings.
Prisons across the state were locked down due to the standoff there. Dozens of inmates were released in Smyrna as the situation progressed, along with two corrections officials who were being held, the Department of Correction said in a statement overnight. It was not immediately clear how many of the inmates held in the seized prison block were hostages as opposed to hostage-takers.
The Delaware State Police entered the building shortly after 5 a.m. Thursday, according to the corrections department. A Department of Correction employee who was being held was “safely rescued and is being examined at a local hospital,” where she is alert and talking, the agency said in a statement.
Police found the remaining hostage, a corrections officer who was not immediately identified, unresponsive when they entered, and he was pronounced dead at 5:29 a.m. Authorities said they would release more information later Thursday at a news conference.
Gov. John Carney (D), in a statement Thursday, said “I’m praying hard for the fallen officer’s family.”
“This serves as a tragic reminder that members of law enforcement risk their lives every day on behalf of the people of Delaware,” he said. “We will stand by the fallen officer’s family and fellow law enforcement officers during what is an extremely difficult time.” Carney said officials were now focusing on trying to learn “what happened and how this happened,” and vowed to “make whatever changes are necessary to ensure nothing like it ever happens again.”
The hostage-takers had said their rebellion was a direct response to President Trump’s policies. “Everything that he did. All the things that he’s doing now,” they said during the second of two manifesto-like phone calls to a local newspaper. “We know that the institution is going to change for the worse.”
The inmates demanded education “first and foremost,” a “rehabilitation program that works for everybody” and a comprehensive look at the prison’s budget and spending, according to audio of the calls posted online by the News Journal in Wilmington, Del.
The Vaughn prison is the largest adult male correctional facility in the state, housing about 2,500 minimum, medium and maximum security inmates, according to the Department of Correction website. It is the landing place for people who have not yet been convicted of a crime and those who have been sentenced to death. Executions are carried out there, according to the website, although the death penalty in Delaware has been struck down by the state’s Supreme Court.
Inmate complaints about treatment within the prison, substandard medical care and poor record-keeping have increased in the past year, Stephen Hampton, an attorney from Dover who has represented prisoners in civil rights cases, told the Associated Press.
"The Predictable Disarray: Ignoring the Jury in Florida Death Penalty Cases"
The title of this post is the title of this new paper now available via SSRN authored by Michael Radelet and G. Ben Cohen. Here is the abstract:
Both the United States Supreme Court, and the Florida Supreme Court have now made it clear that the Florida death penalty statutes that have been in use over the past 45 years are unconstitutional. This result has been predicted since the original adoption of the statutes, and made clear by the Supreme Court's decisions in Sullivan v. Louisiana, Apprendi v. New Jersey, and Ring v. Arizona.
How the courts address the 393 prisoners currently on Florida's death row, sentenced to death under an unconstitutional statute, is yet to be determined. This paper reviews the history of the Florida death penalty statutes and provides a census of cases in Florida.
Wednesday, February 1, 2017
Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
Leon Neyfakh has this piece at Slate of note headlined "Unlike Trump, Neil Gorsuch Has Shown Flickers of Humanity on Criminal Justice Issues." Here are excerpts:
Donald Trump got himself elected in part by acting not just tough on crime but merciless. The guy loves the police and hates anyone who’s even been accused of breaking the law—thinks they’re disgusting and dangerous and don’t deserve an inch of sympathy no matter the circumstances of their offense. This is what it means to be strong in Donald Trump’s mind—a reflection, it has been persuasively argued by historian Rick Perlstein, of the formative years he spent fearing for his life in New York during the bad old 1970s and ’80s.
So it comes as something of a surprise that his pick for the Supreme Court, Neil Gorsuch, has a judicial track record dotted with flashes of humanity when it comes to issues of criminal justice. There’s the time he dissented from his colleagues about whether it was right for a school police officer to handcuff and arrest a seventh-grader for burping in class. (“My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”)
There’s the time he argued it was unfair to hold a guy responsible for failing to follow a law he didn’t know he was breaking, a dissenting opinion that began: "People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land."
Maybe my expectations have sunk too low since Inauguration Day, but even just the premise of those sentences — that putting someone in prison is undesirable and that putting someone in prison who doesn’t deserve to be there is more likely unfair than fine — feels somewhat reassuring.
Also reassuring: a speech Gorsuch gave in 2006 that was being highlighted Tuesday night by the folks at Right on Crime, an organization of conservatives who support criminal justice reform. In that speech, Gorsuch mostly applied his soon-to-be-famous verve to the conservative parlor game of mocking silly federal statutes (“Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too”). But he also said something that betrays an awareness of just how dangerous it is for prosecutors — federal and otherwise — to enjoy so much discretion that they can pretty much punish anyone they want: “What happens to individual freedom and equality,” Gorsuch asked, “when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...
But lest you think Mr. American Carnage has chosen a nominee who is some kind of soft-hearted criminal-coddler, consider the Gorsuch decisions flagged Tuesday by Igor Volsky from the Center for American Progress. One of them has Gorsuch declining to provide relief to a defendant who got life in prison without parole because his lawyer threatened to quit his case if he took a plea bargain instead of going to trial. Several others suggest a tendency to side with police officers who have been accused of excessive force—including one who killed a man by shocking him with a Taser to the head during a chase and another who put a 9-year-old who’d stolen an iPad from his school in a “twist-lock.”
"Say no to restorative justice for sex offenders"
The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce. Here are some of the details:
The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault. Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.
As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.
Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system. In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.
It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us. It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.
But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.
According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....
Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.
The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....
The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.
These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.
Missouri completes fourth execution in US in 2017
As reported here by the AP, "nearly 19 years to the day that Susan Brouk and her two children were taken to a Missouri pond and killed, one of the men responsible for the crime was put to death Tuesday." Here is more:
Mark Christeson was given a lethal injection -- Missouri’s first execution since May. Christeson, 37, was hours away from execution in 2014 when the U.S. Supreme Court granted a temporary stay. This time, though, the court allowed the execution to proceed, and Gov. Eric Greitens declined a clemency request for Christeson, the first inmate to be put to death since the Republican took office.
As the execution drug was administered, Christeson appeared to mouth “I love you” a couple times to people who were gathered to watch the lethal injection on his behalf. Soon, the inmate’s eyes closed. He was pronounced dead at 7:05 p.m. CST, eight minutes after the lethal injection, a Department of Corrections spokesman said.
The killings of Brouk, her 12-year-old daughter, Adrian, and 9-year-old son, Kyle, traumatized the rural area around the south-central Missouri town of Vichy. “It was a heinous crime. I’m just happy to see justice finally served,” said Maries County Sheriff Chris Heitman, who witnessed Christeson’s execution. “I have regrets for the family that it took so long, but I hope it provides closure to them.” ...
The U.S. Supreme Court intervened in 2014 amid concerns about the ineptitude of Christeson’s earlier lawyers, who missed a 2005 deadline to file a federal appeal of his death sentence -- standard procedure in death penalty cases. Attorneys for Christeson again argued that he deserved a federal court review, and raised concerns about his mental competence, claiming he had an IQ of 74. But this time, the courts declined to step in.
Missouri executed 16 men from 2014 to 2015, second only to the 23 executions in Texas over the same two years. Last year, Missouri had just one execution, largely because most of the 25 men on the state’s death row have appeals remaining or are unlikely to be executed due to medical or mental health concerns.
I have flagged that this execution was the fourth in the US in January 2017 because that is the most in a single month since last January.
Tuesday, January 31, 2017
Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
President Trump lived up to his promise to appoint a judge from his not-so-short lists, and tonight the pick he announced was Tenth Circuit judge Neil Gorsuch. Though I would like to see some more diversity on the High Court, I can never be too disappointed when another graduate from my law school alma mater gets tapped to be a Justice. And, I found really interesting that Prez Trump noted this bit of Judge Gorsuch's history while in law school (with my links added):
This law school history is certainly not evidence that Judge Gorsuch would be likely to vote one way or the other in criminal cases, but I still think it quite notable that the judge has this history and than Prez Trump would stress this history.
In the days ahead, I hope to identify any interesting and notable criminal justice opinions of Judge Gorsuch from his time on the Tenth Circuit over the last decade.
Exactly who should (or are) sentencing fans rooting for as Prez Trump is about to announce his SCOTUS pick?
Regular readers know I have blogged a fair amount about some of the folks on Prez Trump's not-so-short SCOTUS pick list, and some of these prior posts are collected below. According to press reports, a couple of well-established and generally well-regarded circuit judges have emerged as the most likely pick. I now wonder if readers with a special interest in sentencing jurisprudence have a special reason to be pulling for a special candidate. If so, please share who and why in the comments.
Once a pick is announced, I expect to do a little blogging on the nominees' sentencing work even though I expect very few others will be assessing the pick's work in this arena. And, as always, I both welcome and depend on help from readers who might have insights and perspectives that I am sure to miss hanging out in my ivory tower.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
- Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
- "In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
- And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch
"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"
The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:
Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences. This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.
Most people serving life sentences were convicted of serious crimes. Their incarceration was intended to protect society and to provide appropriate punishment. But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.
Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety. Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems. Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.
Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population. Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%. By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences. Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO
January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Monday, January 30, 2017
Is VP Pence going to be a key player for possible federal sentencing reform?
The question in the title of this post is prompted by this interesting new Daily Caller article headlined "Want Drug-Sentencing Reform? Look To Mike Pence, Congressman Says. Here are the details:
Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....
Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”
“If you’re going to be tough on crime, you better be smart about it. And there are hardened criminals who do need to spend the rest of their lives in prison.” But, he added, we need to fix the problem of repeat offenders spending years in prison for drug crimes.
Doug Deason, a Seminar Network donor with an interest in sentencing reform, highlighted the White House’s new legislative director, Marc Short, as another reason to be hopeful. Before joining the administration, Short was a longtime adviser to Pence and a lead deputy in the libertarian Koch network. “He cares passionately about criminal justice reform,” Deason said. Deason, a Texas businessman who is president of Deason Capital Services, was less enthusiastic about Sessions, telling reporters, “I’m glad they got him out of the Senate, they got him out of the way!”
Chaffetz defended Sessions, however, pointing to the Fairness in Sentencing Act the Alabama senator shepherded through in 2010, reducing the difference between sentences for crack cocaine and powder cocaine. “I think last year we were caught up in presidential politics… and I think he’s in a different position now,” Chaffetz said....
“We were so close last time,” Lee, a member of the Senate Committee on the Judiciary, lamented to reporters at the seminar.
January 30, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)
Sunday, January 29, 2017
"A Better Approach to Violent Crime"
The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:
If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.
There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...
Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.
It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks. In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.
A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.
California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend.
Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens. A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.
The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.
One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them. Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on.
A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.
Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.
Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods. Some studies have found that half of all urban crimes take place in under 10% of all city blocks. In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.
It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...
Prison, in short, is by no means the only effective way to respond to violent behavior. In fact, compared with these programs, prison is likely one of the least efficient approaches that we have. The declines in incarceration over the past six years are worth celebrating. But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.
If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time. Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.
January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)
Saturday, January 28, 2017
An object lesson in what not to do when you find a big bale of cocaine in the ocean
A helpful reader flagged this somewhat amusing though still very serious sentencing tale of a not-so-old man and the sea. The headline of the article provides the essentials: "Fla. fisherman who hauled in $500,000 worth of cocaine faces life in prison." And here are some of the particulars:
Cocaine, more so than any other narcotic, is the drug most frequently interdicted by the U.S. Coast Guard. In late 2016, the Coast Guard announced it had seized about $2 billion worth of cocaine during a 10-week operation that began in October. (At 26.5 tons, the weight of the seized stimulant rivaled the bulk of four African bull elephants.) Water is the route of choice for drug runners. Some 95 percent of cocaine smuggling operations, a Coast Guard rear admiral told the BBC in 2015, involves traveling via boat.
In the Gulf Coast, a container vessel or freighter may serve as a mother ship, which offloads the drug to sailboats, go-fast cigarette boats, fishing boats and other smaller boats. “Fishermen are great mules because they know the waters and they don’t draw attention,” wrote journalist Erik Vance at Slate in 2013. “And if you have to chuck your haul overboard to avoid the military, other fishermen can dive to retrieve it.” And if the divers sent after the contraband cannot find it, perhaps someone else will.
In 2016, that someone else was Thomas Zachary Breeding. Breeding, 32, was a longline fisherman from Panama City, Fla. The fisherman had accumulated a few run-ins with the law, including drug and gun convictions, the Panama City News Herald reported. In 2012, a federal grand jury indicted Breeding for giving false statements to the National Oceanic and Atmospheric Administration. Prosecutors also alleged he obstructed the agency’s investigation into why the fisherman had entered grouper spawning grounds, closed to fishing; Breeding, they argued, deliberately sought to catch a valuable species of fish called gag grouper. He was sentenced to 15 months in prison.
But, until Breeding found the 45-pound cocaine bale, the fisherman said that he had kept a previously clean slate when it came to the narcotics trade. “I do not know where the drugs came from and haven’t ever been involved in the drug trade before. I was just a hard-working, young commercial fisherman,” Breeding wrote recently in a letter to the News Herald, penned from Florida’s Washington County Jail. “I was working as a long line boat captain out of Panama City when I found a package containing 20 kilos of cocaine.”
It was a what-if scenario of the type that fuels Florida crime potboilers: A fisherman finds a package of drugs valued at a huge street sum, and makes a decision. In Breeding’s case, he was 50 miles south of Panama City when he found between $500,000 and $650,000 of cocaine floating in the gulf. As impressive as the sum was, in the annals of washed-ashore cocaine — white lobster, as villagers along the Central American coast euphemize it — its street value was not a record. In 2013, five fishermen found $2.5 million of cocaine in the waters off north Florida. A metal tube filled with an estimated $5 million worth of cocaine washed up in Ireland last summer.
But it was an object lesson in what not to do. In December, Mark “The Shark” Quartiano, a celebrity Miami fisherman, found a kilogram brick of cocaine. He promptly alerted the authorities. Breeding did not. He instead handed over the 45-pound haul to four other people, on the condition they would sell the cocaine and pay a cut to Breeding. All five were caught in the summer — Breeding, a felon, had a firearm in his car when he was arrested — and faced conspiracy charges for the distribution of a controlled substance. Breeding pleaded guilty Wednesday, the News Herald reported, as did the other members of the network; they are awaiting a Feb. 16 sentencing. Breeding may be punished with up to life imprisonment and a fine in the millions of dollars.
Friday, January 27, 2017
"Reducing Violent Crime in American Cities: An Opportunity to Lead"
The title of this post is the title of a notable new report produced by The Police Foundation and the Major Cities Chiefs Association, which is summarized and can be accessed via this web posting. Here is summary via the posting:
While national crime statistics remain historically low, violent crime—particularly homicides and shootings—is rising in many major cities. The Police Foundation and the Major Cities Chiefs Association (MCCA), with generous support from the Joyce Foundation, are jointly releasing a report entitled, Reducing Violent Crime in American Cities: An Opportunity to Lead. The report provides more than 25 recommendations for the new Administration and Congress, to strengthen federal-local partnerships and support local efforts to reduce violent crime.
According to FBI data, the country’s largest cities experienced a 10% increase in homicide and non-negligent murder from 2014 to 2015, and the second largest group of cities saw a 20% surge. More recent data from MCCA suggest these surges in large cities remains steady, with 61 agencies reporting a 10% increase in homicide from 2015 to 2016, and 1400 additional non-fatal shootings over 2015, another important indicator of violent crime. Law enforcement agencies in many of these cities are also reporting substantial increases in non-fatal shootings, another important indicator of violent crime. While the federal government has provided important assistance in recent years, budget and personnel reductions coupled with competing federal priorities leave some local law enforcement agencies without the fortified partnerships they need to effectively combat violent crime. Law enforcement leaders call for a federal agenda that prioritizes violent crime from both a budgetary and policy standpoint, and that addresses problems with evidence-based solutions.
“Major cities aren’t asking for temporary surges of hundreds more federal agents or responses that take months and years to have a sustained impact. They want tools and smart resources like ballistics imaging, gun tracing, and flexible grants,” said Chief Tom Manger, President of the Major Cities Chiefs Association (MCCA). Police Foundation President Jim Bueermann further emphasizes that “federal, state and local law enforcement need strong partnerships and smart, evidence-based, locally-tailored strategies to reverse trends in the number of shootings in many major cities.”
The recommendations in this report create an overarching strategy to address violence by prioritizing violent crime, holding federal partners accountable for local impacts, and enabling the kinds of partnerships that will create lasting solutions. The following items form the basis of the report’s recommendations: analysis of literature on effective violence reduction strategies; in-depth analysis of federal agency programs, budgets, priorities, authorities, and performance; and, survey data and input from local law enforcement executives.
Texas completes its second execution of 2017
As reported in this AP piece, a "man convicted of a fatal robbery at a Dallas-area Subway shop just weeks after he was fired from his job there was executed Thursday night." Here are a few more details:
Terry Edwards, 43, received lethal injection for the $3,000 holdup at a Subway restaurant where two employees were shot to death in 2002. Asked by a warden if he had a final statement, Edwards replied: "I'm at peace with God. I hope y'all find peace in this." As the lethal dose of pentobarbital was administered, he began snoring quickly. Within about 30 seconds, all movement stopped.
He was pronounced dead at 10:17 p.m. CST, 23 minutes after the sedative began flowing into his arms. Edwards never looked at five relatives of the two murder victims who stood a few feet from him, looking through a window.
Edwards' execution, the second this year in Texas and the third nationally, was delayed about four hours until the U.S. Supreme Court rejected multiple last-day appeals that sought to halt his punishment. Lawyers for Edwards wanted to reopen his case to investigate claims that a court-appointed lawyer earlier in the appeals process provided deficient help by abandoning him. Attorneys also contended Dallas County prosecutors at his trial incorrectly portrayed Edwards as the shooter, that he was innocent of the shootings, that prosecutors manipulated evidence and testimony at his trial and improperly excluded black people from the jury. Edwards was black....
Mickell Goodwin, 26, and Tommy Walker, 34, were each shot in the head in the holdup. Walker, the store manager, had seven children and stepchildren. Goodwin was mother of two daughters. No one else was inside the store. "Tonight is a time for us to remember Mickey and Tommy," their families said in a statement following the execution. "Though this chapter of our journey is now over, we will always feel the loss of them in our lives."...
Edwards was on parole at the time of the shootings. He'd been released in October 1999 after prison time for car theft and possession with intent to deliver cocaine. The second man involved, Edwards' cousin, Kirk Edwards, turned himself in to police a day after the shootings. He had a previous criminal record for burglary and theft and now is serving 25 years for aggravated robbery for the sandwich shop case.
Thursday, January 26, 2017
"Strict Liability's Criminogenic Effect"
The title of this post is the title of this new paper authored by Paul Robinson now available via SSRN. Here is the abstract:
It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.
But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system's lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law's reputation for being just, which means avoiding the use of strict liability.
Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions
As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:
Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.
"The Court concludes that use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.
The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.
Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.
State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions....
Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.
The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link. I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.
Michigan Supreme Court to take up intersection of Apprendi and Miller for juve LWOP sentencing
This local article reports on the notable decision of the top court in Michigan to consider the procedures for deciding whether a juvenile murderer may be sentencing to life without parole. Here is the backstory:
The Michigan Supreme Court will hear arguments on whether a jury or a judge can decided to send youth offenders to prison for life. The court issued a decision to hear the arguments in the Tia Skinner case Tuesday, the latest decision that could impact youth-lifers across the state.
In August 2015, the Michigan Court of Appeals ruled the Yale woman convicted in the 2010 killing of her father and attempted murder of her mother should be sentenced by a jury after a hearing to prove beyond a reasonable doubt the killing reflects "irreparable corruption."
St. Clair County Prosecutor Mike Wendling challenged that ruling and asked the Supreme Court to intervene. He said the defense's argument is that a life sentence to a child is the same as a death penalty, which requires a jury to decide. "It's not the same as being put to death," Wendling said.
During the same period, a different panel from the court of appeals ruled a judge should be the one to decide on a life sentence in a juvenile case out of Genesee County. Because of the conflicting rulings, a special conflict panel was assembled by the court of appeals, and in July it ruled judges should handle the re-sentencings.
The legalities of how to re-sentence youth offenders follows the 2012 U.S. Supreme Court ruling that automatic life sentences to those under 18 constituted cruel and unusual punishment. That decision impacts four St. Clair County cases — Skinner, Raymond Carp, Michael Hills and Jimmy Porter....
If a jury is required to set the sentence, Wendling said his office will have to decide if the Skinner, Porter and Hills cases can be successfully recreated for a jury. He said victims and family will also weigh on that decision.
As the title of this post suggests, I think it is more the Apprendi line of jurisprudence than capital jurisprudence that really serves as a basis for contending a jury must make the key finding to permit a juve LWOP sentence. For complicated reasons, I do not think Apprendi must or even should be interpreted to impact Miller-required re-sentencings, but I can understand why some may be inclined to apply Apprendi and Miller this way.
Wednesday, January 25, 2017
"Pro-Con: Death Penalty Exemption For Severly Mentally Ill"
The title of this post is the label given by a Cleveland paper to these two dueling commentaries addressing the recommendation from the Ohio Death Penalty Task Force (on which I had the honor of serving) to create a statutory exemption from capital punishment for people with serious mental illnesses. Here are the headlines and links to the commentaries:
"Ohio should reform death penalty, not rush back to executions" by Mike Brickner (who is senior policy director of the American Civil Liberties Union of Ohio).
"Legal safeguards on death penalty for the mentally ill are already sufficient" by John Murphy (who is executive director of the Ohio Prosecuting Attorneys Association).
And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch
This CBS News article, headlined "Trump Supreme Court justice pick narrows to two names," it seems that two circuit judges are the men now most likely to be picked by the new Prez to replace Justice Scalia. Here are the details:
The choice to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia is down to two names -- Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania, according to two sources close to the selection process.
Gorsuch has a slight edge -- CBS News’ Jan Crawford reported that Gorsuch was the front-runner over the weekend. But as Mr. Trump narrows the field, “many voices” are “making calls” on Hardiman’s behalf, and he cannot be ruled out, one source said. Hardiman has to be considered a serious contender, just on the heels of Gorsuch.
Tuesday’s White House meeting with Senate leaders and members of the Judiciary Committee is designed to be a general discussion to see if any names on Trump’s list of 21 potential high court nominees would present problems. It is not designed to elicit specific endorsements or opposition to any specific nominee. From the White House perspective, it is viewed as a gesture of respect of the Senate advise-and-consent role.
Both Hardiman and Gorsuch are regarded as conservative, but neither is thought by the White House to be unconfirmable. Nor are they nominees who would, the White House believes, elicit a massive Senate Democratic uprising. That is the working theory, but confirmation fights in the modern era have been unpredictable. There is a sense within the White House that 10 Senate Democrats up for re-election in 2018 from pro-Trump states are particularly vulnerable and MAY vote for confirmation -- hence the White House’s desire to move as rapidly as possible to preserve its leverage.
Gorsuch is a former Washington, D.C. lawyer and Supreme Court clerk educated at Harvard and Oxford who is considered a solid conservative. He sailed through his Senate confirmation in 2006, and was even introduced by both the Republican (then-Sen. Wayne Allard) and Democratic (then-Sen. Ken Salazar) senators from his home state of Colorado...
Selecting Hardiman would diversify the high court in one way -- if confirmed, Hardiman would be the only one on the high court without an Ivy League degree. The Massachusetts native became the first person in his family to go to college when he attended the University of Notre Dame. He paid his way through law school at Georgetown by driving a taxi....
Mr. Trump’s team believes Gorsuch is significantly less likely to inflame the left, while also being an acceptable choice to the far right. Gorsuch sided with Hobby Lobby in the Obamacare contraception case and wrote a book about assisted suicide that indicated his pro-life views. Before joining the bench, Gorsuch took few if any controversial positions as a D.C. lawyer in private practice or during his brief stint in the civil division of the Bush Justice Department.
Hardiman is also seen as a solid conservative, but with a slightly more enigmatic record. Hardiman serves on the same court as President Trump’s sister, Maryanne Trump Barry.
Sentencing fans should know that both Judges Gorsuch and Hardiman have a significant history with sentencing appeals given their extended tenures on circuit courts, but Judge Hardiman also has history as a district judge from 2003 to 2007. I always think his kind of professional history is a plus for Supreme Court justices, and it strikes me as especially notable that Judge Hardiman was involved in sentencing federal defendants both before and after Booker made the guidelines advisory.
"Following the Money of Mass Incarceration"
The title of this post is the title of this notable new report and infographic from the folks at the Prison Policy Initiative. Here is part of the text of the report:
The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence.
In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report:
• we provide the significant1 costs of our globally unprecedented system of mass incarceration and over-criminalization,
• we give the relative importance of the various parts,
• we highlight some of the under-discussed yet costly parts of the system, and then
• we share all of our sources so that journalists and advocates can build upon our work.
Our goal with this report is to give a hint as to how the criminal justice system works by identifying some of the key stakeholders and quantifying their “stake” in the status quo. Our visualization shows how wide and how deep mass incarceration and over-criminalization have spread into our economy. We find:
• Almost half of the money spent on running the correctional system goes to paying staff. This group is an influential lobby that sometimes prevents reform and whose influence is often protected even when prison populations drop.
• The criminal justice system is overwhelmingly a public system, with private prison companies acting only as extensions of the public system. The government payroll for corrections employees is over 100 times higher than the private prison industry’s profits.
• Despite the fact that the Constitution requires counsel to be appointed for defendants unable to afford legal representation, the system only spends $4.5 billion on this right. And over the last decade, states have been reducing this figure even as caseloads have grown.
• Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons.
• Feeding and providing health care for 2.3 million people — a population larger than that of 15 different states — is expensive.
This report and infographic are a first step toward better understanding who benefits from mass incarceration and who might be resistant to reform. We have no doubt that we missed some costs, and we did not include some costs because they are relatively small in the big picture or are currently unknowable. But, by following the money, one can see that private prison corporations aren’t the only ones who benefit from mass incarceration.
Some of the lesser-known major players in the system of mass incarceration and over-criminalization are:
• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.
• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.
• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.
A graphic like this shows the relative economic cost of different parts of mass incarceration, but it can also obscure the fact that we don’t have a single monolithic system. Instead, we have a federal system, 50 state systems, and thousands of local government systems. Sometimes these systems work together, although often they do not; and looking at just the national picture can obscure the importance of state and local policy decisions. For example, while state government spending makes up the majority (57%) of corrections costs, local governments make up almost a third (32%). Local governments are largely enforcing state law, and local discretionary arrest and bail policies can have tremendous influence on both the state budget and justice outcomes. For example, more than half ($13.6 billion) of the cost of running local jails is spent detaining people who have not been convicted.
To be sure, there are ideological as well as economic reasons for mass incarceration and over-criminalization. But at this moment, when crime is near record lows and there is increasing attention to the role of privatization in the justice system, we need a far more expansive view of how our criminal justice system works, whom it hurts, and whom it really serves. If we are to make our society safer and stronger, we’ll need to be making far smarter investments than we are today.
Questions about guilt phase theory of case and misconduct surround Texas death row inmate schedule for next execution
Texas is scheduled to carry out its second execution of 2017 tomorrow, but there are some seemingly serious questions about the guilty theory of the case and the prosecution's conduct. A local article and a Slate commentary provides the particulars:
From the Dallas Morning News here, "Texas high court denies stay two days before execution, but death row inmate's appeals continue"
From Slate here, "Is Texas About to Execute an Innocent Man?: Terry Edwards’ murder conviction is irrevocably flawed."
Horrific aftermath for one Obama commutation recipient
This local article from Michigan, headlined "Ex-gang member 'executed' after Obama commutes sentence," reports on how one recipient of Obama's clemency push quickly became of victim of violent crime. Here are the details:
Police say two masked gunmen with assault-style rifles entered a federal halfway house Monday night with a specific goal: the "execution" of a man recently released from prison at the behest of former President Barack Obama.
Demarlon C. Thomas, a former member of Saginaw's Sunny Side Gang who had his 19-year prison sentence commuted by Obama in November, was slain by one of the gunmen around 9:40 p.m. Monday, Jan. 23, at Bannum Place, the federal halfway house located at 2200 Norman St., Michigan State Police Lt. David Kaiser said.
Thomas, 31, was shot in the head and numerous other times by one of the gunmen as his partner corralled at gunpoint some of the other 23 people in the house, Kaiser said. "One person watched over a group of them while another subject located the victim and executed him," Kaiser said. "They were looking for this person."
No one else was injured, and it's unknown at this time what security measures the halfway house had in place, Kaiser said. No suspects are in custody.
Thomas was among 79 people across the country who had their sentences commuted by Obama on Nov. 22, 2016. Obama commuted Thomas' sentence to expire on March 22, 2017, or about eight years before his initial release date....
Thomas was arrested in one of the biggest drug busts in the history of Saginaw. In 2008, he was sentenced to 19 years in prison for the distribution of five grams or more of cocaine as part of the three-year federal investigation called "Operation Sunset." In all, "Operation Sunset" saw 29 convictions in federal court and 10 in state court and effectively brought about the end of the Sunny Side Gang, which operated on Saginaw's South Side.
Is Prez Trump really ordering the Justice Department to conduct major voter fraud investigation?
Though it appears that Jeff Sessions will not be confirmed to serve as our next Attorney General until next week, his boss this morning was tweeting a new crime-fighting agenda for the Justice Department. This U.S. News & World Report article, headlined "Trump Calls for Voter Fraud Investigation: The president has previously declared that 3 to 5 million voted illegally in 2016," explains:
President Donald Trump called for a "major investigation" into voter fraud Wednesday. "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!" the president tweeted from his personal account.
The call is a follow-up on comments from Trump and the White House. Trump said "millions" voted illegally in November, prompting him to lose the popular vote to Hillary Clinton. And shortly after being sworn in as president, Trump repeated the claim to lawmakers at a White House reception, the Washington Post reported Tuesday.
When asked if the administration would call for an investigation on the matter at Tuesday's briefing in Washington, White House press secretary Sean Spicer said that it was a possibility. "Maybe we will," Spicer said.
He noted the president has continuously stated his concern on the issue before and "continues to maintain that belief" that voter fraud is a major problem, "based on studies and evidence people have brought to him." Spicer specifically cited a study "that came out of Pew in 2008 that showed 14 percent of people who voted were noncitizens."
Politico slammed the veracity of that study and claim, and several outlets, including CNN and the Associated Press, assert that the president and his team have provided essentially no evidence for these claims....
The White House is not fully going it alone, however. Mitch McConnell, the Senate Republican leader, gave at least tacit backing to Trump on the issue Tuesday. "It does occur," McConnell told reporters. "The notion that election fraud is a fiction is not true… There are always arguments on both sides about how much, how frequent and all the rest."
But House Speaker Paul Ryan said he had seen "no evidence to that effect" and he's made his position on the matter "very, very clear."
Based on the reports and evidence I have seen marshaled by folks on both sides of the political aisle, the claim that millions (rather than perhaps just hundreds) voted illegally in the 2016 election is seemingly badly detached from reality. And it is useful to recall that we went down this road to some extent 16 years ago the last time a Republican took control of the Executive Branch. This lengthy New York Times article from 2007, headlined "In 5-Year Effort, Scant Evidence of Voter Fraud," review the last version of this story and it starts this way:
Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews. Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.