Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Spotlighting lower-court divides over AEDPA's savings clause and consideration of sentencing errors

At the intersection of hard-core habeas and sentencing issues is whether the so-called savings clause of the Antiterrorism and Effective Death Penalty Act can be used by a federal prisoner to get federal court to hear a claim of sentencing error.  The Fourth Circuit yesterday, via this order, refused to reconsider en banc its pro-access ruling on this matter in US v. Wheeler, and two judges wrote separately to spotlight what is at stake.  First, a "Statement of Circuit Judge Agee respecting denial of petition for rehearing en banc" starts this way:

The issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.

The opinion in this case casts 28 U.S.C. § 2255(e) in a way that rewrites the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) — a valid congressional act that falls squarely within Congress’ power to define the scope of the writ.  As a consequence, federal prisoners who are detained in this Circuit pursuant to a valid and final criminal judgment may evade the careful limitations placed by Congress upon the writ of habeas corpus in § 2255(h) and, most likely, § 2255(f) as well.  These prisoners may now file § 2241 petitions challenging their sentences whenever circuit court precedent changes, so long as a given majority decides the change created a fundamental sentencing defect. Among the circuits that have addressed the question of the reach of the § 2255(e) saving clause, we stand alone in this most expansive view.

Only two circuits permit a sentencing-based claim to proceed via the saving clause: the Sixth and Seventh.  Hill v. Masters, 836 F.3d 591 (6th Cir. 2016); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).  The opinion here relies on these cases in error, however, because none gives the expansive reference to “fundamental defect” that is put forth here. In short, even those few circuits that have opened the saving clause portal to sentencing-based claims have only opened it wide enough to allow for a claim that the prisoner is being, or at some point will be, detained by the warden beyond the time legally authorized by Congress for his offense of conviction.

Second, a "Statement of Judge Thacker on Petition for Rehearing En Banc" starts this way:

When this court decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and rendered it retroactive in Miller v. United States, 735 F.3d 141 (4th Cir. 2013), it became clear that the mandatory minimum for Gerald Wheeler’s sentence was double what it should have been.  But Wheeler was left with a conundrum -- how could he test the legality of his detention?  He had already filed a direct appeal and motion pursuant to 28 U.S.C. § 2255, and he could not meet the requirements to file a second or successive motion because his mandatory minimum was not increased by a new rule of constitutional law made retroactive by the Supreme Court.  See § 2255(h)(2).  Yet he was nonetheless sentenced under the mistaken understanding that ten years was as low as the sentencing court could go. Indeed, that was precisely the sentence he received.  The district court recognized this sentence was “harsh,” but believed that its “hands [we]re . . . tied.” J.A. 85.

The savings clause, set forth in § 2255(e), allows a court to entertain a traditional § 2241 petition for habeas corpus if “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [the prisoner’s] detention.”  This circuit, see In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000), as well as nine other circuits, interpret the savings clause to provide an opportunity for prisoners to demonstrate they are being held under an erroneous application or interpretation of statutory law.  Two circuits, however, read the clause so narrowly that the savings clause may only be satisfied under the limited circumstances when the sentencing court is unavailable, “practical considerations” prevent the prisoner from filing a motion to vacate, or a prisoner’s claim concerns “the execution of his sentence.” McCarthan v. Director of Goodwill Indus., 851 F.3d 1076, 1092–93 (11th Cir. 2017) (en banc); see also Prost v. Anderson, 636 F.3d 578, 587–88 (10th Cir. 2011).

To adopt the minority view and deny Wheeler the chance to test the legality of his detention under the circumstances at hand would fly in the face of the Supreme Court’s pronouncement that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene v. Bush, 553 U.S. 723, 779 (2008) (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).

I am inclined to predict that this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, "Hey, I was wrong." But I don’t know that I'll ever admit that, but I'll find some kind of an excuse for why my SCOTUS prediction was off.

June 12, 2018 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 11, 2018

"Trump asks for clemency names and lists promptly arrive at White House"

The title of this post is the headline of this notable new article in the Washington Examiner.  Here are excerpts (with one line stressed for commentary):

President Trump told reporters Friday that he wanted to give clemency to more people treated unfairly by the legal system, particularly cases involving people like Alice Johnson, who he released from a life sentence for drug dealing at the request of Kim Kardashian West.  "I want to do people that are unfairly treated like an Alice," he said before boarding a Marine helicopter on the South Lawn of the White House. Hours later, lists of additional names were hand-delivered to the West Wing.

White House counsel Don McGahn and presidential adviser and son-in-law Jared Kushner sat down for separate meetings with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions.

McGahn invited the advocate about a week earlier, requesting names, and seemed to react favorably to the case of Chris Young, a 30-year-old from Tennessee with a life sentence since age 22 for a drug conspiracy, the source said. The sentencing judge called Young's penalty "way out of whack," but said he had no choice.

Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Johnson. Dozens of additional names were supplied by the CAN-DO Foundation, which championed Johnson, as well as Families Against Mandatory Minimums. Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are serving life sentences for smuggling marijuana and unsuccessfully requested clemency from former President Barack Obama.

Pelletier, a paralyzed inmate, received a life sentence for smuggling pot from Canada into Maine, jurisdictions where the drug is now legal or soon will be. Knock’s sentence inspired his sister Beth Curtis to create the advocacy website LifeforPot.com documenting similar cases. "I will die in prison if President Trump does not commute my sentence," Pelletier recently told the Washington Examiner. "Sometimes, I wonder if I'm dead already because I'm living in hell.”

A list of 17 women and six men prepared by CAN-DO was topped by drug-conspiracy convict Michelle West and mail-fraud inmate Connie Farris, women who recently expressed optimism about Trump’s clemency moves, saying they hoped to rejoin their families....

The advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

In his remarks Friday morning, Trump claimed he was reviewing 3,000 names of clemency aspirants and invited football players who claim unfairness in the legal system to submit more names.  It’s unclear if Trump actually has a list of 3,000 names.  It’s possible he was referring to the about 3,000 clemency applications — for pardons and commutations combined — that the Office of the Pardon Attorney received during his administration.  But the OPA, which clemency advocates consider slow and biased, has about 11,000 open cases that rolled over from Obama.

Although Trump referred to a clemency-reviewing “committee” on Friday, a White House official said that clemency petitions currently are being reviewed through the standard process, featuring the pardon attorney's office. There's some indication that's the case. Before Trump issued his second pardon to former Navy sailor Kristian Saucier, for example, the OPA abruptly reopened Saucier's case and sent him a detailed personal questionnaire.

“The White House will continue to review pardons and make decisions on a rolling basis,” the official said. “The White House and the Department of Justice receives thousands of clemency applications per year. The Office of the Pardon Attorney at the Department of Justice and the Deputy Attorney General review these applications in order to make recommendations to the White House on potential pardons."...

Amy Povah, the leader of the CAN-Do Foundation, said she’s pleased with Trump’s recent emphasis on clemency. So far, Trump has issued two prison commutations and five pardons, but the quickening pace is giving aspirants hope. “I have always felt that President Trump would be interested in clemency if he understood the fundamental problem with the Office of the Pardon Attorney being controlled by DOJ,” Povah said. “It's a conflict of interest for DOJ to have final say, which is why some of the best cases never made it to the White House during the Obama administration, like Alice Johnson.”

Margaret Love, who served as U.S. pardon attorney between 1990 and 1997, said she’s also optimistic. “It’s great news that the president may be interested in considering additional cases involving harsh prison sentences,” Love told the Washington Examiner. “President Obama’s clemency program was a good start but he left many deserving cases behind.”

As regular readers may recall, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  I that article I suggested, as a number of commentators have, that the President set up some kind of "Clemency Commission" that would be apart from the work and workings of the Justice Department.  It seems that Prez Obama did not really heed my clemency commission advice (though he ended up doing some good clemency work at the very tail end of his Presidency).  Here is hoping maybe Prez Trump will engineer some needed structural changes. 

A few of many recent related posts about recent Trumpian clemency activity:

June 11, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Spotlighting the role of prisons and jails as our modern mental health facilities

Esquire has this lengthy piece on modern prison realities that is notable for both its content and its author.  The full title and subtitled reveals its contents and author:

'THIS PLACE IS CRAZY': Our mental-health-care system is broken.  Ten of every eleven psychiatric patients housed by the government are incarcerated. Here’s what this crisis looks like from the inside—a series of lost lives and a few rare victories—as reported by a prisoner-journalist.

Here is the full bio from the article of the article's author:

John J. Lennon, a contributing writer at The Marshall Project, has written for Vice, The Atlantic, and The New York Times.  He is currently in Sing Sing Correctional Facility in Ossining, New York.  He will be eligible for parole in 2029.

And here is a snippet from the piece worth reading in full:

Nearly 20 percent of the fifty-two thousand prisoners in New York’s prison system — ten thousand in all — have mental illness.  The Department of Corrections and Community Supervision (DOCCS), which runs the state’s correctional facilities and supervises its parolees, is not alone: Nearly four hundred thousand of 2.2 million prisoners nationwide have a psychiatric diagnosis. Compare that with the thirty-eight thousand patients that the country’s state-run psych hospitals can accommodate.  The math is as easy as it is shocking: Ten out of every eleven psychiatric patients housed by the government are behind bars.

The financial toll is enormous: Treating prisoners with mental illness costs twice as much as providing community-based care.  State prisons spend an estimated $5 billion each year to imprison nonviolent offenders with a disorder.  As the National Alliance on Mental Illness says, “In a mental-health crisis, people are more likely to encounter police than get medical help.”  Jails and prisons have become our de facto asylums.

June 11, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Pew Research Center reports uptick in support for death penalty

FT_18.06.08_DeathPenalty_widening-partisan-gapThe folks from Pew have some notable new survey research on the death penalty reported here under the headline "Public support for the death penalty ticks up." Here are the details:

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then.  Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s.  As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Since 1996, support for the death penalty has fallen 27 percentage points among independents (from 79% to 52%) and 36 points among Democrats (71% to 35%).  By contrast, the share of Republicans favoring the death penalty declined 10 points during that span (from 87% to 77%)....

Support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it. A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Young people are somewhat less likely than older adults to favor capital punishment.  Those younger than 30 are divided — 47% favor and 46% oppose it — but majorities in older age groups support the death penalty.

There are educational differences in views of the death penalty. Adults who have a postgraduate degree are more likely to oppose the use of the death penalty in cases of murder (56%) than those whose education ended with a college degree (42%) and those who never received a postsecondary degree (36% some college experience; 38% high school degree or less).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (73% favor, 19% oppose). White mainline Protestants also are substantially more likely to support (61%) than oppose (30%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 53% of Catholics favor capital punishment, while 42% oppose it. And while 45% of those who are religiously unaffiliated oppose the death penalty, 48% support it.

Especially because the spike in support for the death penalty here seems to be greater among Republicans and independents, I am inclined to describe these results as reflecting a "Trump Effect."   Notably, this poll was taken only a month after Prez Trump and his Attorney General were actively talking up the idea of the death penalty for some drug dealers (see all the links in this post), and I cannot help but wonder if these results somewhat reflect that particular use of the bully pulpit.

June 11, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

SCOTUS keeps us waiting on remaining big (and little) criminal justice cases

The Supreme Court issued a new order list and opinions in four argued cases this morning, but this activity carried little of interest for criminal justice fans.  There were no grants of certiorari on the order list, though there were, unsurprisingly, a handful of cases in which the judgment was "vacated, and the case is remanded ... for further consideration in light of Hughes v. United States."  Hughes, readers should recall, was the case decided last week (discussed here and here) in which the Court embraced a broadened interpretation of who is eligible for sentence modification under retroactive guideline reductions in certain plea settings.

Lacking a new SCOTUS case to review, I figured it might be useful to review the still-pending SCOTUS cases that should be of interest to criminal justice fans.  SCOTUSblog is reporting that the Court has already announced an added decision day for this coming Thursday, so some of these cases might be decided before the end of this week.  And all should be resolved over the next few weeks.  I believe there are a total of 21 SCOTUS cases outstanding, with these on the criminal side of the docket (links and descriptions via SCOTUSblog):

Carpenter v. United States: Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Currier v. Virginia: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

Rosales-Mireles v. United States: Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”

Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

Chavez-Meza v. United States: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

So, roughly speaking, about a quarter of the cases still on the docket involve criminal justice matters.  The real big one of this bunch, of course, is Carpenter; that case has been identified as a potential Fourth Amendment "game changer" even before a cert petition was filed in this case nearly two years ago.  And if sentencing fans are looking for a "sleeper" among this quintet, I am inclined to nominate Chavez-Meza.  Though I am not expecting or predicting a major opinion in Chavez-Meza, the Justices could directly or indirectly jolt federal sentencing procedure and practice if it happened to say something consequential about the preferred form or substance of sentencing explanations for district courts.  (Notably, I might be inclined to predict something significant in Chavez-Meza if Justice Gorsuch was involved in this case, but on this one he is recused because the case comes from the Tenth Circuit.)

June 11, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, June 10, 2018

Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"

Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:

President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program.  But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional.  His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.  While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.

Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated.  That is how the pardon power was designed to work by the framers of the Constitution.

But while Trump’s pardons are hardly unique, the process that produced them is troublesome.  Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.  This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.  President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....

As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor.  Significantly, the Delaware attorney general’s role is strictly one of an advocate.

While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance.  Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light.  This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.

There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power.  But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.

A few of many recent related posts about recent Trumpian clemency activity:

June 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Saturday, June 9, 2018

Latest notable statements by AG Jeff Sessions about crime rates and overdose deaths

Just like US Presidents gets to see official jobs numbers before they are officially made public, I suspect US Attorneys General get to see crime data before they are officially made public.  I am thus always eager to see what AG Jeff Sessions has to say about crime trends, and so these comments made Friday as part of these extended remarks to the Western Conservative Summit caught my eye:

In the Trump administration, we know whose side we’re on.  We’re on the side of law and order — and we back the blue, not the criminals.  We want every American to live in peace.

In recent weeks I sent in reinforcements: more than 300 additional federal prosecutors to high-crime parts of this country.  This is the biggest surge in prosecutors in decades.

These efforts are especially important because, when President Trump took office, the country had been reeling from a sudden increase in crime.  Crime had been declining for two decades. The violent crime rate had been cut in half.  The murder rate was cut in half.  Aggravated assault was cut almost in half. Robbery fell by 62 percent.

But from 2014 to 2016, those trends reversed. In the last two years of the Obama administration, the violent crime rate went up by nearly seven percent.  Robberies went up. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent.  Murder increased by more than 20 percent.

But under President Donald Trump, we are stopping these trends. He is a strong supporter of our law enforcement efforts. As he said during Police Week, “If we want to bring violent crime down, then we must stand up for our police.”  And make no mistake, our goal is to bring crime down.

In the Trump era, the ACLU isn’t making our law enforcement policies.  The professionals are. And we’re seeing results. In the first six months of last year, the increases in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress.

Preliminary data for 2018 look even better.  The Major City Police Chiefs Association has reported a 3.8 percent decline in violent crime and 4.7 percent decline in murders, based on 65 reporting agencies.

New CDC preliminary data show that last fall, drug overdoses finally started to decline.  Heroin overdose deaths declined steadily from June to October, as did overdose deaths from prescription opioids.

We need this progress right now — because not only was crime increasing at the end of the Obama administration, but drug overdose deaths in this country increased by more than a third in just two years.

June 9, 2018 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences? | Permalink | Comments (0)

Interesting perspective on "micro justice" and "macro justice" in the criminal justice system

Over at Governing, Greg Berman (no relation), who is the Director of the Center for Court Innovation, has this interesting commentary under the heading "Our 2 Kinds of Criminal Justice, and How to Reconcile Them: We need both micro justice and macro justice. But they aren't always in sync."  Here is how it starts and ends:

Recently I was asked to speak to a group of idealistic young people just starting their careers in public-interest professions.  After my spiel concluded, the first question I was asked caught me completely off guard: "What is justice?"

Somehow, I have managed to work in the field of criminal justice for 25 years without developing a satisfactory response to this question.  In the days since, as I have rehearsed what I should have said, I have come to realize that, for me, there are two kinds of justice: micro justice and macro justice.

Micro justice focuses on individual people and asks, "What is an appropriate response to the circumstances presented by this specific case?"  Macro justice looks at the bigger picture, examining social impacts, both positive and negative, and tries to determine whether they have been distributed in a way that conforms to basic tenets of fair play.

One of the challenges that confronts the field of criminal justice is that micro justice and macro justice are not always in sync.  Every day, police officers, prosecutors and judges are making decisions in individual cases that are rational, that follow all of the proper procedures, and that many would argue are correct on the merits.  Unfortunately, the cumulative effect of these decisions is to achieve outcomes that, viewed in the aggregate, do not seem just....

So where does this leave us? How do we reconcile the reality that at the ground level many of the people in the justice system are trying to do the right thing with an overarching analysis that the system is not achieving just results?

Many of the potential answers being advanced at the moment -- for example, eliminating cash bail or closing private prisons -- are macro justice solutions that tend to limit the discretion of system actors. We need big ideas like these if we are going to improve justice in this country.

But big ideas alone are not enough.  We need micro justice solutions too. Small changes in daily practice can also have far-reaching implications. We need to give front-line justice professionals the training they require to understand the traumatic life circumstances that bring people into the justice system, whether as defendants or victims. And we need to give them the encouragement and flexibility necessary to treat every person they encounter with decency, respect and individualized attention.

Perhaps most important of all, we need to convince bright young people, like the ones who initially befuddled me, to become front-line criminal-justice practitioners.  The fight to transform the American justice system cannot be won from the offices of our foundations, elected officials or editorial boards.  To create a fair, effective and humane justice system, we need judges, probation officials and correctional officers who are willing to wrestle with the question "what is justice?" on the ground each and every day.

June 9, 2018 in Who Sentences? | Permalink | Comments (0)

Friday, June 8, 2018

ACLU brings novel lawsuit against Kansas DA for failing to disclose diversion options to defendants

Late last year, the ACLU of Kansas last year produced this report titled "Choosing Incarceration" lamenting that prosecutors in Kansas often sought incarceration over available diversion programs.  Now, as details in this press release, the ACLU has taken its complaints to court:

The American Civil Liberties Union and the ACLU of Kansas filed a lawsuit today on behalf of a faith-based organization against a county prosecutor for failing to implement diversion programs in accordance with Kansas law and for pursuing the expensive and disproportionately harsh prosecution of individuals posing minimal community risks.

The lawsuit was filed today in the Kansas Supreme Court against Montgomery County Attorney Larry Markle. At a time when Kansas prisons have swelled beyond capacity, costing taxpayers millions of dollars, Markle and Montgomery County drastically underutilize diversion compared to the national and state average, despite the fact that diversion programs that allow defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, staff attorney with the ACLU’s Trone Center for Justice. “Ignoring the legal requirements to provide notice to defendants of the existence of these programs, and to not discuss these options with those who qualify, is against the law. We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

Markle’s failure to follow Kansas diversion law negatively impacted the work the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and economic development services to Wilson and Montgomery County defendants convicted of drug offenses. Since many KCF clients were likely not given the opportunity to apply for diversion, KCF has had to divert critical resources away from rehabilitation programs to conduct jail counseling sessions and help defendants comply with the terms of their probation or parole....

Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed against active district attorneys since October as a part of nationwide efforts to reform prosecutorial practices nationwide.

The complain in his matter is available at this link.  

June 8, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more names from NFL players

Another day, another round of clemency craziness thanks to Prez Trump.  These two new headlines about what Prez Trump said today account for the new craziness: 

Here is a little context from the Reuters piece (with one phrase highlighted):

U.S. President Donald Trump said on Friday he is considering pardoning some 3,000 people “who may have been treated unfairly,” including late heavyweight boxing champion Muhammad Ali.

“We have 3,000 names. We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly,” Trump told reporters on the White House lawn before he departed for a Group of Seven summit in Canada. In some cases, their sentences are “far too long,” he said.

Trump said he was considering a pardon for Ali, who died in 2016. The boxer refused to be inducted into the U.S. Army in 1967, claiming conscientious objector status, and was sentenced to five years in prison. He never went to prison while his case was under appeal and in 1971 the U.S. Supreme Court overturned the conviction.... It was unclear why Trump would be considering a pardon, given that Ali’s conviction was overturned.

Trump also said he will reach out to National Football League players who have been urging criminal justice reforms for their recommendations of people who have been treated unfairly.

The peculiar discussion of Ali and the olive branch of sorts to NFL players is sure to garner the most attention, but the statement by Prez Trump that some federal defendants get sentences that are "far too long" strikes me as most interesting and perhaps consequential. Specifically, in the on-going debate over federal statutory sentencing and prison reforms, this comment leads me to wonder (and hope) that Prez Trump might be convinced to be support of some statutory sentencing reforms before too long, if not now.

June 8, 2018 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6)

"Why Aren’t We Spending More on Prisoner Education?"

The question in the title of this post is the headline of this notable new commentary authored by Stephen Steurer now up at The Crime Report. Here is how it starts and ends:

Education reduces crime, plain and simple.

The RAND Corporation underscored the positive impact of education in its 2013 review of the research reports on correctional education over the last couple of decades.  Bottom line from their reports: providing education programs for incarcerated men and women significantly reduces future crime all by itself, separate from any other treatment they receive.

Combined with other effective programs, such as drug rehabilitation and mental health counseling, education can help to reduce crime and recidivism even more effectively. RAND also demonstrated clearly that an education program pays for itself several times over. Every dollar invested in correctional education creates a return of five dollars in the reduction of future criminal justice costs.

So why are we not spending more criminal justice dollars on education?  We literally spend billions on the most expensive — and least effective — option: locking folks behind bars in record numbers....

Positive change can be painfully slow.  However, when the US does become interested in a particular issue, it is amazing how quickly it can retool and redirect its resources.  For those of us old enough to remember, we did it by putting a man on the moon when the Russians threatened US leadership in the space race.  Hopefully, we can redirect ourselves again to help change the direction of the lives of so many people returning to society after years of incarceration.

Education is not rocket science.  We already know how to teach people to read, write, do math and train for jobs.  For the sake of the incarcerated and, literally, for our own health and safety, let’s build and open more school programs in our prisons and jails.  Education does reduce recidivism!...

We continue to need serious political writers, both liberals and conservatives, to urge government and courts to get really “tough on crime” and sentence criminals to do their time in school to straighten out their lives.  We need to literally “throw the book at them.”

June 8, 2018 in Prisons and prisoners | Permalink | Comments (4)

Thursday, June 7, 2018

Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?

The question in the title of this post is prompted by this ABC News article headlined "Trump’s ‘solo act’ push for presidential pardons likely to grow, WH officials say." Here are excerpts:

The White House has been working to prepare documents for a growing list of potential pardons or commutations under consideration by President Donald Trump, two senior administration officials told ABC News Thursday. "You don't want to be the person empty-handed when he's asking," one of the officials said. "Need to be ready when the boss is ready to go.”

Officials describe the push for pardons as "a solo act," pointing directly to Trump’s pushing for more and more names. White House aides believe Trump is grasping for names he knows like Martha Stewart and former Illinois Gov. Rod Blagojevich, sources told ABC News, while the aides lobby the president to consider also more unknown Americans who have been behind bars for nonviolent crimes.

The sources said they expect the president's list to grow in the coming weeks. "He's doing it his way and he likes seeing how quick the process has been," one of the sources said. The White House, as ABC News has reported, has been going around the Department of Justice, which is usually heavily involved in such cases.

I sincerely doubt Prez Trump or his aides read this blog and its comments, but one never knows.  So, dear readers, with Prez Trump reportedly "pushing for more and more names," let's give him more and more names.

Especially in light of modern marijuana reforms, I hope someone points Prez Trump and his aides to the Life for Pot site which has detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuana and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  And I cannot help but view John Knock as the first among equals on that list, in part because of the amazing work his sister has done to bring attention to his story and those of other similarly over-sentenced federal defendants.

The amazing Shon Hopwood and FAMM's Kevin Ring has been championing the cause of Matthew Charles (discussed in this recent post), so I am hopeful that his name is already on the radar of folks at the White House.   But I know there are thousands, likely tens of thousands, of persons who can make a reasonable case for receiving clemency in the form of a commutation or pardon.  I welcome names to be listed and cases to be made in the comments.   

UPDATE: This Washington Post WonkBlog piece spotlights a ready source for clemency candidates. The piece is headlined "It’s not just Alice Marie Johnson: Over 2,000 federal prisoners are serving life sentences for nonviolent drug crimes," and it starts this way:

On the advice of Kim Kardashian, President Trump on Wednesday commuted the prison term of Alice Marie Johnson, a 63-year-old great-grandmother, who in 1996 was sentenced to life without parole in federal prison on nonviolent drug and money laundering charges.

It's a somewhat surprising move coming from Trump, a president who has publicly called for executing drug dealers. But Jordan's case underscores how many nonviolent drug offenders are serving life terms in federal prison. According to federal corrections data analyzed by the Sentencing Project, a criminal-justice-reform group, as of 2016 1,907 federal inmates were serving life sentences for drug offenses, which are by definition nonviolent (more on that below).

An additional 103 offenders found guilty of those crimes were serving “virtual life sentences,” which the Sentencing Project defines as sentences of 50 years or more. Under federal law, there is no possibility of parole for crimes committed after Nov. 1, 1987.

June 7, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

June 7, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act

As reported in this article from The Hill, a "group of 40 former state and federal inmates is pushing Senate leaders to take up the White House-backed prison reform bill that has divided Democrats and liberal groups, as well as GOP senators." Here is more:

In a letter Wednesday to Senate Majority Leader Mitch McConnell (R-Ky.), Minority Leader Charles Schumer (D-N.Y.), Judiciary Committee Chairman Chuck Grassley (R-Iowa) and ranking member Dianne Feinstein (D-Calif.), the former prisoners argue the First Step Act, while modest, offers some meaningful reforms....

The former inmates say they know the bill isn’t perfect, but it’s something. “All of us would change the bill in different ways and many of us wished it addressed excessive federal mandatory minimum sentences,” they wrote.  “But we also know that the bill would provide some long overdue relief and hope to more than 180,000 people in federal prison and millions of their family members and loved ones on the outside.”...

Supporters of prison reform say demands for all or nothing is the wrong approach. “We’ve been disturbed by some of the comments we’ve heard that doing nothing is better than doing something and that is not at all what we hear from the tens of thousands of prisoners we’re in touch with,” said Kevin Ring, president of Families against Mandatory Minimums, who spent one-and-a-half years in federal prison. “It’s also inconsistent with our own experiences being in federal prisons and knowing how much reform is needed. Waiting to do anything until you get everything is deeply misguided.”

The full letter and the list of signatories is available at this link. Here is an excerpt of a missive that merits a full read:

Despite the bill’s clear benefits, we have heard some people suggest it would be better for Congress to do nothing rather than pass this bill.  Such talk reflects a disturbing detachment from the hardships that so many families are experiencing today because of our counterproductive federal sentencing and prison policies.

While we do not claim to speak for all people who are serving time in federal prison or their families, we (or the organizations at which we work) are in touch with tens of thousands of these incarcerated individuals and their families every week.  Many of us still have friends and loved ones behind bars.  The people we talk to have no use for abstract debates about whether to pass comprehensive or narrow reform, speculative theories about how passing reform today might impact future reform or, worst of all, political gamesmanship.  These families just need some help.  They shouldn’t have to wait any longer.

We also know from our personal experience that meaningful programming, educational, and job training opportunities in the federal system are lacking.  All too often people are warehoused for decades with no hope.  We know that too many parents are incarcerated so far away from their children that they rarely get to visit them — just imagine seeing your kids once or twice a year, if that.  Going without the hugs and kisses of our loved ones for weeks and months was the most difficult part about being in prison.  We know others who have gone for years without that critical physical contact.  We also know that the Federal Bureau of Prisons’ incorrect calculation of good time credit has deprived people of shortening their lengthy prison sentences.  If anyone tells you these reforms are not “real” or “meaningful” to vulnerable families and individuals across the country, they simply don’t know what they are talking about.

Some of many prior related posts:

June 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

After SCOTUS rejected its standards, Texas Court of Criminal Appeals again rejects Bobby Moore's intellectual disability claim to preclude death penalty

As noted in this post last year, the US Supreme Court in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), rejected the restrictive factors then being used by the Texas Court of Criminal Appeals to assess intellectually disability for death penalty ineligibility under the Eighth Amendment.  But the defendant in that case, as reported in this local article, has now had his intellectually disability claim rejected again by the Texas Court of Criminal Appeals.  Here are the basics:

The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.

More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore's case, ruling the state used outdated medical standards and rules invented by elected judges without any authority. In a 5-3 ruling on Wednesday, the all-Republican Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.

Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents....

In a new evaluation using the current medical framework, the majority of the Court of Criminal Appeals ruled that Moore still did not show enough adaptive deficits to qualify as intellectually disabled, citing the fact that he learned to read and write in prison and buys items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.

The court’s opinion also noted that before the U.S. Supreme Court ruled in 2002 that people with intellectual disabilities were exempt from execution, Moore had claimed in court that he did not have a disability and that his difficulties were due to an abusive childhood and his lack of learning opportunities.

In a 67-page dissent, death penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said the court’s majority erred in its use of the current medical standards and that Moore is intellectually disabled. Alcala said the court disregarded the standards by improperly weighing Moore’s strengths against his deficits in his adaptive functioning and put too much weight on his progress in a controlled death row environment.

She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies and many observations in the Supreme Court ruling that appeared to agree Moore was disabled. “I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”...

Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.

Though Moore will remain on the row in solitary confinement, it seems unlikely he will get an execution date set while Ogg, a Democrat elected in 2016, is in office. Execution dates are set by convicting county courts after appeals have been exhausted, usually prompted by the district attorney’s office. And Ogg asked the Court of Criminal Appeals to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. Ogg did not answer a question from The Texas Tribune about seeking an execution date for Moore. Instead, she said in an emailed statement Wednesday afternoon that she anticipated the court’s decision to use “correct scientific standards” would immediately be applied to assess intellectual disability claims of other death row inmates, without mentioning Moore at all.

The 35-page majority opinion in Ex parte Bobby James Moore is available here, the 67-page dissenting opinion is available here.

June 7, 2018 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 6, 2018

Reviewing the Supreme Court's work in sentence modification cases of Hughes and Koons

So much of interest has already happened this week, I almost forgot that on Monday the Supreme Court resolved two of the most notable sentencing cases on its docket this Term.  (Sentencing fans still have Rosales-Mireles v. United States on plain error review of sentencing errors and Chavez-Meza v. United States on required sentencing explanations to keep our interest the next few Mondays.)  Helpfully, I have seen on line a few reviews and round-ups of Hughes and Koons, and I figured it would be useful to link here:

June 6, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

A few of many recent related posts about Trumpian clemency activity:

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

June 6, 2018 in Elections and sentencing issues in political debates, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, June 5, 2018

Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"

The latest dispatch from inside the Beltway on the clemency front comes in the form of this juicy new Washington Post article headlined "Trump fixates on pardons, could soon give reprieve to 63-year-old woman after meeting with Kim Kardashian." The entire article is a must-read, and here are just a few highlights:

President Trump has become fixated on his ability to issue pardons, asking his aides to compile a list of candidates and stirring dissent in the West Wing with his mercurial and seemingly celebrity-driven decisions.

Trump is telling aides that he is now strongly considering pardoning Alice Marie Johnson, a 63-year-old woman serving a life sentence for a nonviolent crime, after meeting with Kim Kardashian last week to discuss her case — a move being resisted by his chief of staff and a top White House lawyer....

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

“It’s all part of the show,” said veteran Republican consultant Ed Rollins, a former strategist for a pro-Trump super PAC. “It’s not a rational or traditional process but about celebrity or who they know, or who he sees on ‘Fox & Friends.’ He’s sending the message, ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”

The pardon for Johnson could come soon, with the paperwork being finalized Tuesday morning, according to a person familiar with the discussions. Trump’s aides and associates see Kardashian’s celebrity imprimatur as crucial and alluring to the president. But the potential pardon of Johnson has caused consternation in the West Wing, with top advisers — including chief of staff John F. Kelly and White House counsel Donald McGahn — disturbed by the process, according to two people familiar with the discussions.

Kelly has reviewed Johnson’s background and her 1996 conviction — she was sentenced to life in prison on drug possession and money laundering charges — and is not convinced she deserves a pardon, an administration official said. And McGahn has also argued against the possible pardon as an unnecessary action by the president, a second official said.

Jared Kushner, the president’s son-in-law and senior adviser who helped arrange the meeting with Kardashian in the Oval Office last week, has heavily pushed for a pardon for Johnson within the West Wing, these officials said. Kushner attended the meeting between Trump and Kardashian, and having recently had his security clearance reinstated, has been described as newly emboldened by White House aides.

A White House spokesperson said the administration had no current announcements to make on pardons and declined to discuss the specifics of ongoing deliberations....

Trump’s pardons so far have been scattershot, driven by television segments, celebrities, friends and White House advisers who have pressed their cases for pardons that include controversial Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and Lewis “Scooter” Libby, former chief of staff to Vice President Richard B. Cheney. He also posthumously pardoned heavyweight boxing champion Jack Johnson in May, after being lobbied by actor Sylvester Stallone....

Trump has begun asking friends who else he should pardon, according to an adviser who frequently speaks to the president, and some have offered suggestions. The president has asked McGahn to prepare a list of other pardons for him to consider, administration officials said.

Some people seeking pardons are now making their case on Fox News, the president’s favorite channel, knowing he may be watching. Patti Blagojevich, the former governor’s wife, appeared on “Justice with Judge Jeanine” Saturday night.... On Monday, the wife of former Trump foreign policy adviser George Papadopoulos went on Fox News’ “Tucker Carlson Tonight” and for the first time said she believed Trump should pardon her husband, who pleaded guilty in October to lying to the FBI about Russia contacts during the campaign. Papadopoulos is awaiting sentencing on the felony charge....

The White House is also now weighing whether to grant a presidential pardon to two ranchers from eastern Oregon, Dwight and Steven Hammond, whose 2016 imprisonment on arson charges inspired the 41 day-armed occupation of the Malheur National Wildlife Refuge. Ranching and farming groups, as well as some militia adherents, have pushed for clemency to send a signal that federal officials won’t engage in overreach out West.

The Hammonds’ supporters argue that the two men, originally convicted in 2012 on two counts of arson, shouldn’t have been forced to serve jail time on two separate occasions. While they would have normally served a mandatory minimum sentence of five years, U.S. District Judge Michael Hogan initially gave Dwight Hammond three months and his son Steven a year and a day behind bars. But the government won an appeal over the Hammonds’ sentence in 2015, so they were resentenced to serve out the remaining years of a five-year minimum.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Open Roads and Overflowing Jails: Addressing High Rates of Rural Pretrial Incarceration"

The title of this post is the title of this new report authored by Marc Levin and Michael Haugen. Here is its executive summary:

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system.  Yet in many jurisdictions, it appears to have been forgotten. The pretrial population of defendants has significantly increased — particularly in rural areas of the country. Jails in smaller jurisdictions are responsible for an outsized share of jail population growth.  Indeed, from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties.

This paper explores why this growth may have occurred and makes numerous recommendations to reduce pretrial populations, particularly in rural America.  The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time — the overcriminalization of our society must be reversed.  The next step is to restore our historical commitment to individual liberty and the presumption of innocence by following these five guiding principles of pretrial justice policy:

•  There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty.

•  Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•  Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance.

•  The burden should be on the state to prove the need for conditions of release or denial of bond in an adversarial proceeding where the accused is present.

•  Individual judicial consideration should be required for each accused.

For a host of reasons, ranging from limited resources to dispersed populations, addressing pretrial incarceration in rural areas is a particularly complex undertaking.  Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.  Ultimately, as rural communities across the country take many different paths to addressing the meteoric rise in rural pretrial incarceration over the last few decades, they must not lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage.

June 5, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Guest post: "The Eleventh Circuit’s Take On Handling The Wave of Dimaya-Related Litigation"

6a00d83451574769e201b7c9134b4d970b-320wiA helpful reader alerted me to an order recently issued by the Eleventh Circuit concerning how it wished to handle prisoner litigation in the wake of the Supreme Court's big recent Dimaya vagueness ruling.  In response, I reached out to the academic rock-star who comes to mind in conjunction with federal habeas litigation, Leah Litman, as she was kind enough to write up this terrific guest post:

In the wake of Sessions v. Dimaya, at least one court of appeals has changed its practice from the post-Johnson days, and happily so.  Even better, that court is the U.S. Court of Appeals for the Eleventh Circuit.

By way of background: Dimaya, like Johnson before it, immediately precipitated a wave of resentencing requests by prisoners seeing to have their sentences corrected in light of the decision. Some of these prisoners were sentenced under statutes that incorporate section 16(b); others were sentenced under statutes that merely resemble section 16(b) (sometimes resembling section 16(b) in every possible way, such as section 924(c)).  Some of these prisoners are seeking to file their first section 2255 motion; others seeking permission to file a second or successive section 2255 motion. 

In a post for the Harvard Law Review blog, I wrote about some of the obstacles that prisoners in these situations will face.  Prisoners seeking to file second or successive 2255 motions face significantly more obstacles than prisoners seeking to file their initial section 2255 motions.  For example, prisoners seeking to file second or successive 2255 motions have to obtain authorization from a court of appeals before they can file in the district court.  And to obtain that authorization, prisoners have to show not only that the decision on which they are relying is retroactive, but that the Supreme Court has made it retroactive.  By contrast, prisoners seeking to file their initial section 2255 motions have to show only that the decision on which they are relying is retroactive.   

In the post-Johnson litigation, the U.S. Court of Appeals for the Eleventh Circuit adopted an approach under which it would adjudicate all section 2255 motions relying on Johnson.  It maintained that approach even after the Supreme Court had granted certiorari in Welch to decide whether Johnson is retroactive (the Court likely granted certiorari in Welch just to make Johnson retroactive).  It also maintained that same approach after the Court granted certiorari in Beckles to decide whether an analogous provision in the U.S. Sentencing Guidelines was also unconstitutionally void for vagueness.

The Eleventh Circuit’s case-management decision was fairly high stakes, as I explained in this essay in the Northwestern Law Review with Shakeer Rahman and in this Take Care post with Lark Turner.  For one thing, processing defendant’s initial section 2255 motions would push defendants’ cases toward second or successive 2255 motions, at which the obstacles to recovery would be greater.  Processing so many section 2255 motions in short order also risked losing cases in the fray, particularly given that defendants have no constitutional right to counsel in their section 2255 motions.  Moreover, the Eleventh Circuit had also interpreted section 2244 to require it to dismiss any claim in a second or successive 2255 motion that had been presented in a previous petition.   The Eleventh Circuit’s practice was also contrary to the other circuits:  In In re Embry, the U.S. Court of Appeals for the Sixth Circuit, in a decision by Judge Sutton, explained why holding cases in abeyance of Beckles made the most sense.  Other courts of appeals did the same.

In the wake of Dimaya, the U.S. Court of Appeals for the Eleventh Circuit has brought its practices into line with other circuits.  The Eleventh Circuit issued an order (“General Order 43”) in which it ordered all second or successive 2255 motions involving section 924(c) to be held in abeyance for the Eleventh Circuit’s decision in Ovalles v. United States.  The Eleventh Circuit took Ovalles en banc to decide whether section 924(c) is unconstitutionally void for vagueness in light of Dimaya (the court ordered briefing on whether courts must use the categorical approach to interpret section 924(c), but General Order 43 recognizes the court will decide the constitutionality of section 924(c) as part of the case).   Thus, Ovalles is to Dimaya as Beckles was to Johnson:  Both cases will or would decide whether an analogous provision is unconstitutionally vague in light of the preceding Supreme Court decision.  But whereas the Eleventh Circuit refused to hold cases in abeyance for Beckles, it is doing so for Ovalles.

I am not exactly optimistic that the Eleventh Circuit is going to invalidate section 924(c) in light of Dimaya.  I think the Eleventh Circuit is likely to hold that courts need not use the categorical approach when interpreting section 924(c), and distinguish section 924(c) from 16(b) on that basis.

Nonetheless, I think a rare kudos is appropriate here for the Eleventh Circuit’s decision in General Order 43.  By electing to hold cases for Ovalles, the Eleventh Circuit is avoiding unnecessary duplication in litigation, which would waste everyone’s (the courts, public defenders, and litigants) time.  It is also avoiding generating a slew of unfavorable precedents for defendants:  In the wake of Johnson, the Eleventh Circuit disposed of many Guidelines cases by holding that the defendant’s prior convictions qualified as violent felonies under the enumerated offense or element of force clauses, even assuming the Guideline’s residual clause was vague.   Doing so ensured that the court’s decisions would be insulated from having to go through another round of review in the event the Supreme Court ultimately held the Guideline unconstitutionally vague.  But it also generated a ton of unfavorable precedent to the defendants, without argument and even without full briefing, given that that is how courts of appeals dispose of requests to file second or successive motions.  By changing course and holding cases for Ovalles, the Eleventh Circuit is avoiding repeating the same error.  And that’s something, these days.

June 5, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018"

NATO_OH_2018A pair of new reports from the Prison Policy Initiative compares US states to 166 countries on incarceration in order to highlight how each state relies on prisons and jails relative to the rest of the world. These report are titled "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018." Here are snippets from the first (and clicking through to see the graphics is a must for both):

Oklahoma now has the highest incarceration rate in the U.S., unseating Louisiana from its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth . Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation, ... every state appears extreme.  23 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 9th in the world, just below Brazil and followed closely by countries like Belarus, Turkey, Iran, and South Africa.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts.  Others struggle with violent crime on a scale far beyond that in the U.S.: El Salvador, Russia, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “land of the free,” tops them all....

For four decades, the U.S. has been engaged in a globally unprecedented experiment to make every part of its criminal justice system more expansive and more punitive.  As a result, incarceration has become the nation’s default response to crime, with, for example, 70 percent of convictions resulting in confinement — far more than other developed nations with comparable crime rates.

Today, there is finally serious talk of change, but little action that would bring the United States to an incarceration rate on par with other stable democracies.  The incremental changes made in recent years aren’t enough to counteract the bad policy choices built up in every state over decades.  For that, all states will have to aim higher, striving to be not just better than the worst U.S. states, but among the most fair and just in the world.

June 5, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Alan Dershowitz says anyone can get clemency from Trump, as buzz builds behind bars." Here are excerpts:

President Trump issued his first prison commutation after lunch with Alan Dershowitz. The men talked about Mideast politics before Trump "asked me what else was on my mind, and I told him.  I took advantage of the moment,” the longtime Harvard law professor recalled.

Dershowitz told the president about Sholom Rubashkin, a kosher meatpacking executive who was seven years into a 27-year prison sentence for financial crimes. Not long after, Rubashkin in December became the first — and so far only — person Trump released from prison. "You have to appeal to his sense of injustice," said Dershowitz, who often says on TV that Trump is treated unfairly in special counsel Robert Mueller’s Russia probe. "He feels he is now being subject to injustice, and so he's very sensitive to injustices."

Trump's approach to clemency, exhibited with a flurry of recent statements and official actions, is markedly different from his recent predecessors, generating enormous excitement among inmates.  Dershowitz believes just about anyone has a shot at bending Trump's ear, even though most successful cases have been pushed by well-connected advocates.   "I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he's looking for cases of injustice. But you have to write it in a compelling way,” he said. “They have to write something that will catch the attention of someone on the president's staff."

So far, Trump has issued one prison commutation and five pardons.  But the pace is quickening.  Last week, he posthumously pardoned boxer Jack Johnson at the behest of “Rocky” actor Sylvester Stallone, saying Johnson’s early 1900s conviction was a race-motivated injustice.  On Wednesday, Trump met in the Oval Office with celebrity Kim Kardashian, who lobbied him to release Alice Johnson, a grandmother jailed for life since 1996 on drug-dealing charges.  Early on Thursday, Trump tweeted that he would pardon conservative author Dinesh D'Souza, who pleaded guilty in 2014 to a campaign-finance felony. Hours later, Trump told reporters he was considering pardoning celebrity chef Martha Stewart and former Gov. Rod Blagojevich, the Illinois Democrat who allegedly tried to sell President Barack Obama's Senate seat.

Although Johnson has not been given clemency, she remains optimistic.  “I'm feeling very hopeful after speaking with Kim about how well the meeting went with President Trump,” Johnson said in an email from prison Friday, facilitated by her longtime supporter Amy Povah, who leads the CAN-DO Foundation....  “I have strong reason to believe that President Trump is going to surprise many people,” said Povah...

Dershowitz said there's a method to the apparent madness of Trump’s clemency grants, which are a sharp break from the early-term stinginess of his recent predecessors. "You have to make him say to himself, 'There but for the grace of God go I, or other people I identify with.' He has to feel the injustice. It's not enough to get online with hundreds of other people showing a law was misapplied. There has to be a sense of gut injustice,” he said....

If there’s anyone who would know Trump’s thinking on clemency, it’s Dershowitz. In addition to pushing Rubashkin’s release, he was consulted by Trump in advance of the recent pardons of D'Souza and I. Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney who was convicted in 2007 but never imprisoned for making false statements. “I said I thought they were both injustices, that there was a whiff of politics around the decision to prosecute D’Souza, and that I did not think Scooter Libby had committed perjury — I thought there was just a difference in recollection,” Dershowitz said.

"When I made the appeal on behalf of Rubashkin, I said, 'You are a businessman, you understand what happens when the government and prosecutors manipulate the system and lower the value of your company in order to increase the value of losses and increase the sentence.' As soon as I said that, he said, 'I get that. I get that. I've been there,’” Dershowitz said. "He immediately glommed onto it because he understood the business implications of it ... there wouldn't have been any losses, or minor losses, but because the government drove the price down, it drove the sentencing guidelines way up."...

“I've always thought President Trump would step up and finish the job that President Obama started but never completed,” said Michelle West, a clemency aspirant in prison for drug-related crimes since 1994. “My daughter, Miquelle West, went to the Obama White House for a clemency summit. In our wildest dreams we never thought that I would be passed over considering she was invited to attend.” West said in an email relayed by Povah that “my daughter was 10 when I went to prison and I pray President Trump will consider me worthy of a second chance.”

Crystal Munoz, 11 years into a 20-year sentence for dealing marijuana, said that she, too, was hopeful, sending Povah the draft of a letter for Trump. Munoz, 38, gave birth to her youngest child in prison.  Connie Farris, a 73-year-old inmate jailed for mail fraud, said "I will never, never give up hope that our president will start releasing women such as myself and others. Please President Trump hear our cry." Farris, seven years into a 12-year sentence, said her husband of 53 years suffers from muscular dystrophy and needs her support.

Although there’s significant hope stemming from Trump’s unconventional approach, there’s also some skepticism that everyday inmates can win a presidential reprieve. “The problem is, the president’s process is a little haphazard, it seems, and a little ad hoc. And then you have this completely Byzantine dead-end of a process at the Justice Department,” said Kevin Ring, president of Families Against Mandatory Minimums.

“I think people are encouraged that he’s going around the Justice Department to look at deserving cases, but it’s not clear that anybody has the ability to get in front of him — so sort of good news, bad news,” he said.  Ring said Dershowitz’s contention that anyone can win clemency with a letter is “a little naive.”  

“There are people who buy lottery tickets every Friday and they’re optimistic because they don’t know the odds. And when people see a winner, that gives them hope,” he said.

Like Kevin Ring, I am a bit concerned to hear that there may be "enormous excitement among inmates" given Prez Trump's clemency record to date.  He has only commuted a single sentence so far, and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities has seemed to be influencing all of Prez Trump's clemency work to date, and precious few federal prisoner have political forces in their favor.  I sure hope Prez Trump will, as Amy Povah put it, "surprise many people," but I think hopes ought to be tempered for now.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Collateral consequences, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Noticing a shrinking (but still functioning) death penalty in Georgia

The Atlanta Journal-Constitution has this notable new article headlined "Death sentences becoming increasingly rare in Georgia."  Here are excerpts, with a few remarkable lines highlighted:

The Georgia Supreme Court on Monday did something it once did on a fairly routine basis but now hardly ever does: It heard a death-penalty appeal. It had been almost two years since the court heard a direct appeal — the first appeal after a capital sentence is imposed — in a death-penalty case. And this once-unthinkable rarity shouldn’t change anytime soon.  It’s now been more than four years since a Georgia jury handed down a death sentence.

This is in keeping with what’s been going on nationally. Last year, 39 death sentences were imposed nationwide.  That’s a dramatic drop from 126 capital sentences imposed a decade earlier and from 295 death sentences imposed in 1998, according to the Death Penalty Information Center in Washington.

National polls show the death penalty is losing public support, said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia.  That’s because people are becoming increasingly comfortable with the sentencing option of life in prison without the possibility of parole....

The last time a death sentence was handed down by a Georgia jury was March 2014 in Augusta against Adrian Hargrove, who committed a triple murder.  Last year, the two death cases that went to trial in Georgia involved the murder of law enforcement officers — a crime that traditionally results in a death penalty.  Yet both resulted in sentences of life without parole.

More often than not, district attorneys are now allowing capital defendants to enter guilty pleas in exchange for life-without-parole sentences.  “It’s a self-fulfilling prophesy,” Gwinnett County District Attorney Danny Porter said. “As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort.”  Even so, it’s not time to remove the death penalty as a sentencing option, Porter said. “I think there are still cases where there’s just no question that death is the proper punishment.”...

Opponents to capital punishment have traditionally been aligned with liberal causes. More recently, increasing numbers of conservatives are speaking out against it. Heather Beaudoin, national coordinator of Conservatives Concerned about the Death Penalty, said her primary concerns are the number of exonerations that have been disclosed over the years and the possibility of executing an innocent person. “We have a problem on our hands,” she said....

Beaudoin founded Conservatives Concerned about the Death Penalty in Montana in 2010. Five years ago, it became a national organization and has chapters in 13 states, including one in Georgia. “Many of our supporters are millennials who are pro-life like I am,” she said. “We believe that life is created by God and has value no matter what the circumstances are. Even someone who has committed an awful crime — that life has value.”

After four years without a death sentence, Georgia’s capital defender office is attracting national recognition. The capital defender’s office is part of the state’s public defender system and represents capital defendants who can’t afford their own lawyers.  The office’s intervention program, in which capital defenders seek plea deals from prosecutors early on in a case, has helped more than 20 defendants avoid a death-penalty trial, Jerry Word, who heads the defender office, said.  “The average time to resolve a case in early intervention has been less than eight months,” Word said. “The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county.”

I am not sure it would be entirely accurate to assert that a state has a well-functioning death penalty system if nobody gets sentenced to death. But I do think it is accurate to say that the death penalty is playing an important role in Georgia's criminal justice system: the mere possibility of capital charges seems to be essential to helping poor murder defendants get high-quality representation early in a case and also to helping the most wrenching cases get resolved within a matter of months.

June 5, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, June 4, 2018

Calling Professor Pfaff: Attorney General Sessions announces 311 new Assistant United States Attorney positions

Though there are many elements and nuances to the teachings of Professor John Pfaff, I think of him first and foremost for the notion that, when concerned about modern mass incarceration, we all ought to pay a lot more attention to the role and work of prosecutors and ought to focus a lot more on how we handle violent crime and criminals.  Thus, I could not help but think of the fine Professor upon seeing this official press release today from the Department of Justice. 

Here is the press release's full title: "On the 500th Day of the Trump Administration, Attorney General Sessions Announces 311 New Assistant United States Attorney Positions: Largest Increase in AUSAs in Decades Allocates Prosecutors to Focus on Violent Crime, Civil Enforcement, and Immigration Crimes."  Here is its full text:  

Today, on the 500th day of the Trump Administration, Attorney General Jeff Sessions announced that the Department of Justice is taking a dramatic step to increase resources to combat violent crime, enforce our immigration laws, and help roll back the devastating opioid crisis.  In the largest increase in decades, the Department of Justice is allocating 311 new Assistant United States Attorneys to assist in priority areas.  Those allocations are as follows: 190 violent crime prosecutors, 86 civil enforcement prosecutors, and 35 additional immigration prosecutors.  Many of the civil enforcement AUSA’s will support the newly created Prescription Interdiction & Litigation Task Force which targets the opioid crisis at every level of the distribution system.

"Under President Trump's strong leadership, the Department of Justice is going on offense against violent crime, illegal immigration, and the opioid crisis — and today we are sending in reinforcements," said Attorney General Jeff Sessions.  "We have a saying in my office that a new federal prosecutor is 'the coin of the realm.'  When we can eliminate wasteful spending, one of my first questions to my staff is if we can deploy more prosecutors to where they are needed. I have personally worked to re-purpose existing funds to support this critical mission, and as a former federal prosecutor myself, my expectations could not be higher. These exceptional and talented prosecutors are key leaders in our crime fighting partnership.  This addition of new Assistant U.S. Attorney positions represents the largest increase in decades."

The statements that this is the largest increase in federal prosecutors in decades leads me to wonder, based largely on Professor Pfaff's work, if this personnel development may be more consequential to defining the future size and composition of the federal prison population than any statutory sentencing reform and prison reform bills being considered in Congress.  

June 4, 2018 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Many hundreds of federal prisoners surely thrilled by Hughes, but thousands surely disappointed by Koons

As I mentioned in this post a few months ago around the time of SCOTUS oral argument, a lot of federal prisoners had a lot of interest in the two sentence modification cases on the SCOTUS docket.  Now that we have decisions in the sentence modification cases of Hughes and Koons (basics here), a bit of (too) simple accounting seems in order.

Helpfully, Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines reports that 781 prisoners have been denied a sentence reduction "because of binding plea" (the issue in Hughes) and that 3070 prisoners have been denied a sentence reduction because "mandatory minimum controls sentence."  Though these numbers are not the full universe of who might be impacted by these rulings, it does suggest that, speaking quantitatively, these rulings were a bigger win for federal prosecutors than for federal defendants.

Prior related post:

June 4, 2018 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons

Though the Supreme Court's ruling today about wedding cakes is sure to be what is most remembered from the first set of June 2018 opinions, the Court gave sentencing fans a lot to review with opinions in Hughes v. United States and Koons v. United StatesThe opinion in Hughes v. United States, No. 17–155 (S. Ct. June 4, 2018) (available here), will be a disappointment to some SCOTUS-watchers because the Court avoided addressing the Marks rule concerning fractured opinions.  But Hughes will not be a disappointment those sentencing fans who will be excited to see that Justice Gorsuch joined a majority opinion authored by Justice Kennedy in favor of a broad interpretation of who is eligible for sentence modification under retroactive guideline reductions. The opinion in Koons v. United States, No. 17- 5716 (S. Ct. June 4, 2018) (available here), was a unanimous opinoin authored by Justice Alito, which informed readers likely know means it federal prosecutors prevailed.

Here are some key sentences from the Hughes majority:

To resolve the uncertainty that resulted from this Court’s Opinion of the Court divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement....

This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act.  “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U.S., at 533. “Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid.  And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement.

Here is the start of the unanimous (and very short) Koons opinion:

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission.  The five petitioners in today’s case claim to be eligible under this provision.  They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders.  We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

June 4, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Justice Sotomayor delivers lengthy dissent from denial of cert in Texas capital case concerning ineffective assistance of counsel

This morning's Supreme Court order list yet again lacks any grants of certiorari, but it does not lack some other interesting happenings.  The list includes a per curiam resolution of a dispute over access to abortion by undocumented teens in US custody that is sure to get the most attention. And a denial of cert in a capital case from Texas, Trevino v. Davis, may also generate some buzz because of a long dissent by Justice Sotomayor, joined by Justice Ginsburg. Here is a snippet from the start and close of this 13-page dissent:

When the Court of Appeals for the Fifth Circuit ultimately considered whether Trevino was prejudiced by his trial counsel’s failure to investigate and present evidence of his fetal alcohol spectrum disorder (FASD), the panel majority did not properly “reweigh the evidence in aggravation against the totality of available mitigating evidence.”  Wiggins v. Smith, 539 U.S. 510, 534 (2003).  Rather, the majority dismissed the new FASD evidence because it purportedly created a “significant double-edged problem” in that it had both mitigating and aggravating aspects, and stopped its analysis short without reweighing the totality of all the evidence.  861 F.3d 545, 551 (2017).  That truncated approach is in direct contravention of this Court’s precedent, which has long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation; the true impact of new evidence, both aggravating and mitigating, can only be understood by asking how the jury would have considered that evidence in light of what it already knew.

Although this Court is not usually in the business of error correction, this case warrants our intervention and summary disposition.  I respectfully dissent from the Court’s refusal to correct the Fifth Circuit’s flagrant error....

The Fifth Circuit majority plainly misapplied our precedents.  Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.  That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.

June 4, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, June 3, 2018

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

June 3, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"Equal Protection Under the Carceral State"

The title of this post is the title of this new article authored by Aya Gruber now available via SSRN.  Here is its abstract:

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies.  In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. 

Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values.  Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option.  Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants).  There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

June 3, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Saturday, June 2, 2018

"Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"

The title of this post is the title of this lengthy new New York Times article.  I recommend it in full, and here are excerpts:

For those who view the Justice Department’s pardon system as slow and sclerotic, with its backlog of more than 11,000 cases, they need only look to the case of Matthew Charles.  Mr. Charles was sentenced in 1996 to 35 years in prison for selling crack cocaine. In prison, he took college classes, became a law clerk and taught fellow inmates.  He was released early, in 2016, and began rebuilding his life, volunteering at a food pantry and even falling in love.

Last month, Mr. Charles was sent back to prison after a federal court determined that he did not technically qualify for early release. His lawyers plan to ask the Justice Department to commute the rest of his sentence, and he appears to fall within its guidelines for clemency. But with nearly 9,000 petitioners for a commutation ahead of him, it could take years for federal law enforcement officials to decide his fate.

Cases like Mr. Charles’s make some criminal justice reform advocates say they would welcome a reform-minded president willing to bypass the system and more boldly wield the constitutional power to grant pardons.

Now they have one in President Trump, who has pardoned five people in his first 17 months in office and bypassed the Justice Department’s recommendation system to do so. This week, he pardoned Dinesh D’Souza, the conservative commentator who pleaded guilty in 2014 to violating campaign finance law. Mr. D’Souza responded on Twitter by claiming victory over what he viewed as a political prosecution and by mocking Preet Bharara, the former United States attorney in Manhattan whose office prosecuted the case.

But by choosing to pardon political supporters whose cases largely failed to meet the basic guidelines for pardons, Mr. Trump could turn a slow and imperfect system into an unequal and unjust one, both liberal and conservative advocates warn, in which those with fame, money or access to the president’s ear are first in line to receive clemency.

“A more regular and robust use of presidential clemency, and a willingness to go around the Justice Department process, would be applauded by many,” said Kevin Ring, a conservative public policy expert and the president of Families Against Mandatory Minimums. “The issue is whether the president will still apply standards and meritocracy. Will he weigh the injustices and mete out justice to reflect the needs of a situation? That doesn’t seem to be the case.”...

The pardon office has a reputation for slow decision making, in part because of the time needed to carefully vet a case. Of the backlog of 11,203 pardon and commutation cases, only 2,876 have been filed since Mr. Trump became president. A lack of resources has also bogged down the process, according to officials involved. The previous pardon attorney, Deborah Leff, resigned because she said she could not get the resources necessary to meet Mr. Obama’s goal to prioritize petitions that would shorten sentences for nonviolent drug offenders....

Advocates who want to see the pardon system overhauled generally support its guidelines for granting pardons and commuting sentences. In general, felons wait five years after conviction or release to petition for a pardon. They must show evidence of rehabilitation and demonstrate that they have led responsible and productive lives after release for a significant period of time. The recommendations of officials including federal prosecutors and judges are also taken into consideration.

“A president that circumvents this system is not necessarily a bad idea,” said Shon Hopwood, Mr. Charles’s lawyer. “Legal scholars have argued for years that it’s inappropriate to have the office of the pardon attorney at the Justice Department. It asks the people who grant pardons and clemency to correct their colleagues, the prosecutors who put people in prison.”

Some regular readers may recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders." Here is a snippet from that piece (updated for Trumpian times):

President [Trump] ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is for President [Trump] to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

Prior recent related posts about Trumpian clemency activity:

June 2, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Lamenting how federal supervised release operates and suggesting reforms

Jacob Schuman, a federal public defender, has this extended New Republic piece headlined "America’s Shadow Criminal Justice System" detailing problems with how federal supervised release operates. I recommend the piece in full, and here are excerpts:

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release....  As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years. In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision.  But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months.  After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a maximum-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House.  While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less....

The data show that this system is incredibly strict, and that its reach is vast.  Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months.  By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations)....

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners.  Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision.  The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive.  Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality.  In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.”  This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt.  The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights....

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent.  To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.

June 2, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision | Permalink | Comments (2)

Friday, June 1, 2018

Another notable example of mandatory minimum sentences driving severe outcomes even when not applied

Old and new media is buzzing today about severe sentencing story out of Georgia involving a 15-year-old sentenced to five years of imprisonment for stealing a pair of sneakers.  Before getting to the details of the story, I am inclined to encourage readers to (A) think about what kinds of facts might lead to a teenager getting five years in prison for stealing a pair of sneakers, and (B) think about whether they already have an inkling about the gender and race of this teenager. 

Like all sentencing stories, this one has nuances and this AP account provides more of the nuanced details than some others I have seen (with a few sentences highlighted to connect the story to the title of this post):

A judge and prosecutor said Friday that a five-year sentence given to a Georgia teen who stole a pair of pricey shoes was appropriate because a gun was used during the robbery. Dayonn Davis, who was 18 when he was sentenced this week to five years in prison followed by 10 years of probation, was charged as an adult even though he was 15 when the crime was committed and his lawyer said he had no prior record.

Prosecutors Sadhana Dailey said in court that Davis contacted the owner of the Nike Oreos — so called because they're black and white — after seeing them for sale on Facebook, according to the Ledger-Enquirer.  They arranged to meet at a Columbus park on Jan. 17, 2016.  Another male went with Davis to the meeting.  When Davis tried the shoes on, he told the seller, "These shoes is took." The other male pulled out a gun and everyone fled, the newspaper reports.

"This was an armed robbery. It's not a theft.  There's a big difference between a theft and an armed robbery," Dailey told The Associated Press on Friday in a phone interview.  "The teen victim was robbed at gunpoint."  Columbus police quickly identified Davis, who had the shoes in his closet.  Davis initially told police no one else was involved but eventually gave a name, but the seller of the shoes couldn't identify the person in a photo lineup as the gunman, the newspaper reported.

Davis was charged with armed robbery and reached a deal with prosecutors to plead guilty to robbery by force, which allowed him to avoid the mandatory 10-year sentence that comes with an armed robbery conviction, Dailey said. "He got a break," she said.

Defense attorney Susan Henderson told Muscogee County Superior Court Judge Bobby Peters her client just wants to put the whole thing behind him and move on, the Ledger-Enquirer reported. "He's been extremely remorseful," she said. "He's got his life on track now."

She insisted Davis didn't know the other person would pull a gun. But the judge says that makes little difference in the eyes of the law. "I was young at the time, so I wasn't in my right mind," Davis told the judge.

Judge Peters called the case an unfortunate situation and told the AP he would rather it have been handled in juvenile court.  Dailey said it was appropriate to charge Davis as an adult because of the seriousness of the crime.  Peters told the AP that Davis will likely be released on parole before completing his five-year sentence. Because it's a first offense, Davis' record can be expunged if he successfully completes probation, Peters said.

I suspect that few would dispute the statement by the prosecutor here that "there's a big difference between a theft and an armed robbery," or that an armed robbery ought to call for more punishment than a theft.  But, especially on the facts as described here, the notion that this teenager "got a break" seems quite disputable ... except in light of the seemingly applicable  mandatory 10-year sentence for this kind of offense.

If one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would have to say, like the prosecutor here, that this teenager got a huge break.  But then again, if one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would also have to say that the prosecutor here has no respect for the rule of law when opting to give this teenager a huge break.  So, this case provides another example of what mandatory sentences really do: they put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment  and to commitments to the rule of law. 

June 1, 2018 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Making the case against nitrogen as an execution method

Download (14)Charles Blanke, an oncologist and professor of medicine, has this notable new commentary in Newsweek headlined "Death by nitrogen should not be america's new capital punishment method." Here are excerpts:

Ever since the first recorded state punishment, when the Jamestown colony executed a Spanish spy by firing squad more than 400 years ago, Americans have tinkered with the technologies used to kill condemned prisoners....  Since 2015, three states, Oklahoma, Alabama and Mississippi, trying to improve upon the current methods of execution in America — gas chamber, hanging and lethal injectio n— have added nitrogen gas asphyxiation to their capital punishment arsenals.

Nitrogen, which makes up about 78% of the air we breathe, is a colorless, odorless, tasteless gas used in a broad commercial range that includes ceramics manufacturing and steelmaking.  While it is not poisonous, breathing in pure nitrogen keeps the brain from getting enough oxygen, which itself is directly fatal.  In fact, a number of lethal industrial accidents involving inhaled nitrogen are reported every year.  Though its potential use in executions has not been formally studied, advocates have already suggested legal death via nitrogen inhalation would be quick, peaceful, and humane.

We need to ask three questions about the possible use of nitrogen in capital punishment cases.  Would it work? Does it offer advantages over current methods? And, is it cruel and unusual, violating the Eighth Amendment to the U.S. Constitution? The answers are yes, maybe, and we don’t know (but probably yes).

Though it has not yet been used in a death penalty case, there is no doubt using nitrogen to execute prisoners would be highly effective.  Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after.  Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.

The second question, whether or not using nitrogen is better than what we currently do, is harder to answer. We need to be cautious in adopting new methods for use in capital punishment cases.  Every technique embraced to date, no matter what advantages they were thought to offer in theory, has been fraught with real-life shortcomings, ranging from modest to heinous.  Convicts in the electric chair have burst into flames, or required multiple jolts. The gas chamber, adopted by 12 states as being humane, fails in five percent of cases, with some prisoners observed to gasp for air for prolonged periods. Others have convulsed.

Lethal injection, the go-to procedure in every state with a capital punishment provision, has the highest fail rate of any method, exceeding seven percent. It can require multiple needle pokes to access veins in prisoners scarred from drug abuse or chronic illness, and one recent botched execution attempt in Alabama reportedly led to profuse bleeding and a punctured bladder....

There are many unanswered questions on what could go wrong with nitrogen use. If prisons forced the convicts to wear a tight fitting mask, would this increase the feeling of suffocation?  Could they still leak?  Or, would an entire room need to be filled with pure nitrogen? Would accidental dilution with oxygen-containing room air (mask or room) slow or even prevent death, leaving prisoners in comas or brain-damaged?

Also, nitrogen use isn’t medically regulated, and it’s hard to imagine much quality control would be applied to inspecting the gas used in death penalty cases.  What happens if prisons buy contaminated product?  Finally, would the nitrogen manufacturers take their cue from those making medications used in lethal injection and restrict sales to penitentiaries?...

Humans normally breathe in life-sustaining oxygen and breathe out carbon dioxide produced during respiration.  Choking victims, who cannot get enough oxygen, say it is agonizing.  Supporters of using nitrogen in capital punishment cases believe the feeling of suffocation actually comes not from lack of oxygen (known as hypoxia), but from the buildup of carbon dioxide.  Since prisoners could still blow off carbon dioxide while breathing pure nitrogen, advocates say they wouldn’t suffer from air hunger.

What if they are wrong? Some studies suggest that fatal low oxygen levels alone do cause anxiety and the fear of suffocation.  And, it wouldn’t actually matter, even if they are right.  Hypoxia itself can cause severe nausea, disorientation, confusion, dizziness, inability to move, and seizures, regardless of what the carbon dioxide levels are doing.

Nitrogen gas doesn’t put people to sleep as do the medicines used in anesthesia, so prisoners could be painfully aware.  To be sure, sedating them first would prevent any distress from the hypoxia, but it would leave all the other problems associated with lethal injection.

It should be noted that nitrogen was previously used to kill animals, but it’s not a method that’s used anymore—the American Veterinary Medical Association does not recommend nitrogen euthanasia because evidence suggests gassed dogs and cats can actually suffer horribly before dying. Determining in advance whether or not nitrogen asphyxiation offers a “peaceful” death is impossible. We don’t have a lot of interviews with survivors of industrial nitrogen accidents, and experimentation is unethical—we can’t partly gas convicts and ask them how it went.

If our old-fashioned methods are not ideal, and nitrogen asphyxiation is not proven humane, are there other alternatives? Yes. I testified in hearing where the United States District Court for the Northern District of Alabama recently ruled in the case of Doyle Lee Hamm that oral drugs used medically in states allowing terminally ill patients to take their own lives — “death with dignity”. This method could lawfully be employed in capital punishment cases. Though Alabama still ultimately tried (unsuccessfully) to use standard intravenous injection following the legal action spawning that ruling, medications given by mouth are under consideration in death penalty cases elsewhere in the south....

Capital punishment remains constitutional, and it isn’t going away any time soon.  However, our Supreme Court has ruled the death penalty cannot involve unnecessary or wanton infliction of pain, and that there must be a constitutional means of applying it.  We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment.  We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.

A few (of many) prior related posts:

June 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

"Challenging the Punitiveness of 'New-Generation' SORN Laws"

The title of this post is the title of this notable new article by Wayne Logan now available via SSRN.  Here is its abstract:

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals.  To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause.  Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. 

This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws.  The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

June 1, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, May 31, 2018

Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"

1527789503108I often come to think of Prez Trump as Huckster-in-Chief or Showman-in-Chief, and his TV salesman tendencies shine through when he teases his own presidential plans like a radio host hoping to keep you tuned in to the next segment.  This morning, as blogged here, the tease was on Twitter in the form of a promise to "be giving a Full Pardon to Dinesh D’Souza."  This afternoon, as detailed in this Fox News piece, the tease was delivered to reporters on Air Force One about more grants of clemency to more high-profile federal felons:

President Trump said Thursday he was considering pardoning or commuting the sentences of Martha Stewart and former Illinois Gov. Rod Blagojevich, following his announcement earlier in the day of a full pardon for conservative filmmaker Dinesh D’Souza. The president’s comments came during a gaggle with reporters on Air Force One enroute to Houston, Texas.

Trump called the former governor’s sentence on corruption charges “really unfair” and added that “plenty of other politicians could have said a lot worse.” The president said that Blagojevich said something dumb, but that "lots of politicians" do.

“I’ll tell you another one … there’s another one that I’m thinking about. Rod Blagojevich -- 18 years in jail for being stupid and saying things that every other politician, you know that many other politicians say,” Trump told reporters. “And if you look at what he said, he said something to the effect like 'what do I get' … stupid thing to say.”

The former Democratic governor, who was a contestant on Trump's "Celebrity Apprentice" in 2010, began his 14-year prison sentence in 2012 after being convicted of corruption. Blagojevich's scheduled release date is in 2024. Blagojevich was governor of Illinois from 2003 to 2009, when he was impeached and convicted on corruption charges over allegations he took bribes for political appointments—including to the open U.S. Senate seat of former President Barack Obama.

Trump suggested he was more interested in “curtailing his sentence” than a full pardon. “I am seriously thinking about – not pardoning – but I am seriously thinking of a curtailment of Blagojevich," Trump said....

“And there are others. I think to a certain extent Martha stewart was harshly and unfairly treated. And she used to be my biggest fan in the world … before I became a politician," Trump said. "But that’s ok I don’t view it that way.”

Stewart was convicted in 2004 of obstructing justice and lying to the government as part of an insider trading case. At the time, former FBI Director James Comey was the federal prosecutor who charged Stewart.

I noted in this post yesterday that Kim Kardashian on Wednesday afternoon was at the White House to speak in person with Jared Kushner and Prez Trump about her interest in seeing a clemency grant for Alice Marie Johnson, a grandmother serving LWOP for non-violent drug offense.  I closed that post by saying "it would be something for Kimme to get clemency relief for a single federal defendant; it would be something special if she could secure clemency relief for a number of individuals." For the record, I was not thinking about Martha Stewart or Rod Blagojevich or Dinesh D’Souza when I made that statement. But, jokes aside, this trio might want to send a thank you note to Kimme because it seems she did something to get Prez Trump's clemency juices flowing.  Now let's all hope these juices flow to the benefit of some non-elites ASAP.

A few prior related posts:

May 31, 2018 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Fuzzy math and fuzzy logic in criticisms of federal FIRST STEP Act based in state recidivism data

Over at PoweLine, Paul Mirengoff has this extended post trying to make a case against the FIRST STEP Act under the headline "Cold Facts On Recidivism Undermine Case For Leniency Legislation."  I find some of Mr. Mirengoff's posts to be astute even though he relies often on "tough-and-tougher" rhetoric to oppose any possible form of sentencing reform. But this latest effort is full of especially fuzzy work.  Let me explain with some quotes (indented and italicized) followed by my commentary.

Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release.  44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years....  The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways. 

First, it is estimated that FIRST STEP would mandate the immediate release of at least 4,000 federal felons before they serve their full sentence. Given the recidivism numbers from the BJS study, we know that a high percentage of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars.

Mr. Mirengoff accurately reports that the BJS study (which I noted in this prior post) concerns state prisoners, though he fails to note these are folks who were released from state prisons in 2005.  From the very outset it is very faulty to assert that recidivism data on state prisoners released in 2005 readily enables us to "know" what federal prisoners released in 2018 will do.

The US Sentencing Commission's most recent report on federal prisoner recidivism, notably, shows a much lower (though still significant) rearrest rate than state prisoners.   Here is how the USSC explains how distinct the federal population is from the state population when running prisoner recidivism numbers:  "Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a  lower recidivism rate.  BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison ... found the recidivism rate for these federal offenders was 44.9 percent." 

Moreover, the estimated 4000 prisoners to be getting earlier release thanks the FIRST STEP Act will be getting out mostly a few weeks or a few months earlier because of getting a little extra credit for good behavior in prison.  The proper statistics suggest, based on the nature of federal prisoners and how limited the FIRST STEP Act really is, that only a quite low percentage "of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars."

Mr. Mirengoff goes on:

Second, the BJS study tells us that the crimes that federal drug felons will commit aren’t confined to drug crimes. According to the study, more than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime.  So much for the argument we hear over and over again from Team Leniency that those incarcerated for drug crimes are “non-violent offenders.”...

Again we have the problem of conflating data on state prisoners with federal prisoners.  But here we have an even bigger logical flaw because the BJS recidivism data does not show that persons who committed state drug crimes really were violent offenders before they went to state prison, rather it shows that they became violent offenders (or, more accurately, were arrested for a violent offense like assault) after spending time in prison.  This actually goes to the heart of the argument for any form of (state or federal) prison reform: we need to do a better job of making prison a place where people become better people not worse criminals.

Mr. Mirengoff continues:

Third, the numbers undermine the rational for FIRST STEP used by certain conservative Senators such as John Cornyn. They argue that some states have made great strides when it comes to rehabilitating prisoners. Thus, the argument goes, statistics about recidivism rates among federal prisoners do not provide a sound basis for opposing sentencing reform, provided the reform also includes corrections reform.  The idea is to bring model state prisoner rehabilitation programs into the federal system. This, it is said, will cause recidivism rates to plummet, making America safe for the early release of federal drug felons and for a reduction of mandatory minimums. The BJS numbers tell us that the states, collectively, are doing no better than the feds when it comes to rehabilitating prisoners. 

But what about “model” states like John Cornyn’s home state of Texas, so often touted by sentencing and corrections reform advocates? It turns out that Texas isn’t doing any better than the feds either.  The numbers that reform advocates use to calculate recidivism in Texas count only re-incarcerations, not re-arrests. By contrast, the federal system measures recidivism by re-arrests (to be sure not everyone arrested has committed a crime but then, not everyone who has committed a crime is arrested). If one compares apples to apples — federal re-arrests to Texas re-arrests — the recidivism rate in Texas is actually higher than the federal rate, according to the National Association of Assistant U.S. Attorneys.  FIRST STEP is thus founded on a fiction — the view that enlightened states have discovered the key to the age-old problem of how to rehabilitate criminals. 

Again, a lack of context concerning time and place and prisoners makes this reasoning faulty.  The BJS data reveal that Texas and other states did a lousy job rehabilitating those prisoners who were released back in 2005 before the modern wave of reforms in Texas or anywhere else.  This Right on Crime posting highlights the reform put in place in Texas starting in 2007, and Texas was really the first state to get started on these types of "modern" reforms.   Data on state prisoners released in 2005 will never prove that state reforms started in 2007 are ineffectual.

Now that all said, neither Texas nor any other jurisdiction has all of a sudden "discovered the key to the age-old problem of how to rehabilitate criminals."  This is an age-old problem because it never has had and never will have an easy or obvious solution.  People and crime are way too complicated for magic bullet solutions.  But what Texas and other states have done, and what the FIRST STEP Act aspires to do, is move forward with reforms that have provide to help at least a little bit with the the age-old problem of how to rehabilitate criminals.  No programming ever can or ever will  miraculously drop recidivism rates to near zero, but Mr. Mirengoff wants that to be the prerequisite to any reforms:

Let’s see recidivism rates plummet on a sustained basis, using apples to apples comparisons, before the first federal prisoner is released early and the first mandatory minimum is reduced.

It would be more direct and more honest if Mr. Mirengoff simply said "Let’s never allow a federal prisoner to be released early or any mandatory minimum to be reduced."

May 31, 2018 in Assessing Graham and its aftermath, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"

I have an inkling that years from now lots of academics may be able to get PhDs based on a robust analysis of President Trump's tweeting. And the last 24 hours would make for an especially interesting account of Prez Trump's various perspectives on criminal justice matters.  Here are just a few Trumpian tweet highlights:

"Great meeting with @KimKardashian today, talked about prison reform and sentencing."

"'The recusal of Jeff Sessions was an unforced betrayal of the President of the United States.' JOE DIGENOVA, former U.S. Attorney."

"Not that it matters but I never fired James Comey because of Russia! The Corrupt Mainstream Media loves to keep pushing that narrative, but they know it is not true!"

"Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!"

This CNBC article provides some context for this latest (political) act of Presidential clemency in the last of these linked tweets:

President Donald Trump said Thursday he plans to issue a pardon to Dinesh D'Souza, a prominent conservative commentator and filmmaker who was convicted of making an illegal campaign contribution....

D'Souza pleaded guilty in 2014 to reimbursing two of his associates after directing them to contribute $10,000 each to the 2012 Senate campaign of Wendy Long. He also admitted that he knew what he was doing violated the law.

Then-U.S. attorney Preet Bharara announced D'Souza's conviction at the time. "Dinesh D'Souza attempted to illegally contribute over $10,000 to a Senate campaign, wilfully undermining the integrity of the campaign finance process," Bharara said. "Like many others before him, of all political stripes, he has had to answer for this crime -- here with a felony conviction."...

D'Souza was sentenced to spend an eight-hour day each week in community service as part of a five-year probationary term, according to the Southern District of New York. He also has to attend weekly counseling sessions and pay a $30,000 fine.

Texas Sen. Ted Cruz, an ally of both Trump and D'Souza, applauded Trump's decision in a tweet of his own....

The president has used his pardon power five other times since taking office, including the controversial pardoning of former Sheriff Joseph Arpaio in August 2017.

Though I am always pleased to see any president make robust use of his clemency powers, I find disconcerting the obvious affinity Prez Trump has for using this power for the benefit of prominent political allies.  I am surely naive to hope that Kim Kardashian could have explained to Prez Trump how it could be politically valuable for him to start granting clemency to a bunch of just "regular people" that he claims to care about so much.   As I see it, there are lots of federal felons other than Dinesh D'Souza who have been "treated very unfairly by our government!" Perhaps Prez Trump will see and act on that reality eventually. 

May 31, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Retributivist Theories' Conjoined Twins Problems"

The title of this post is the title of this notable new paper on SSRN authored by Brittany Deitch.  Here is its abstract:

This Article expands a previously published article, which introduced a novel problem to the centuries-old debate on the retributivist justification of punishment.  The first article applied the problem of conjoined twins, where one commits a crime and the other is innocent, to pure retributivism.  The conjoined twins problem showed that pure retributivism, which holds absolute duties to punish all who are guilty and none who are innocent, fails as a complete theory of punishment.  This Article broadens the application of the conjoined twins problem by applying the problem to other versions of retributivism, including deontological, consequentialist, threshold, negative/weak, victim-conscious, and mixed retributivist theories.  Exploring each version in turn, this Article uses the conjoined twins problem to show that no version of retributivism can serve as a complete theory of punishment.

May 31, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, May 30, 2018

As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced

Donald-Trump-Body-Shame-Kim-KardashianIn this post earlier this month I asked, "Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?" The post was prompted by the news that "Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense."  This Vanity Fair article now reports that Kimme (who still has more Twitter followers than Prez Trump) is now headed to the White House to speak in person with Kushner and Prez Trump about a clemency grant.  Here are the details:

After months of back-channel talks between Kim Kardashian and Jared Kushner, the high priestess of reality television is coming to the White House.  By late afternoon on Wednesday, Secret Service agents will wave Kardashian and her attorney through the southwest appointment gate to the West Wing, where they will meet Kushner to discuss prison reform before he walks with them to sit down with President Donald Trump, likely in the Oval Office, along with White House counsel.  According to a person familiar with the meeting, Kardashian plans to ask Trump to pardon a woman serving a life sentence without parole for a first-time drug offense.  (White House staffers have joked about who will get to accompany her to the West Wing, and what they should wear for the occasion. The White House did not immediately respond to requests for comment.)...

Kardashian, a more recent prison reform evangelist, appears to be approaching the White House meeting with equal seriousness.  She will not be bringing the camera crew for her reality show, Keeping Up with the Kardashians, nor will she bring a publicist or her sisters, according to the person familiar with the situation.  (Her husband, Kanye West, who recently tweeted a photo of his red Make America Great Again hat, will not be present either, though there have been talks about him making a White House appearance of his own at a later, to-be-determined date.)  Instead, Kardashian hopes to make a legal argument to President Trump for why he should pardon Alice Johnson, a 62-year-old great-grandmother serving a life sentence without parole for a first-time drug offense.  More than 21 years after Johnson went to prison, Kardashian came across Johnson’s story on Twitter earlier this year and reached out to Ivanka, who connected her to Kushner, according to the source. In an interview earlier this month, Kardashian said that, if given the opportunity, she would “explain to [Trump] that, just like everybody else, we can make choices in our lives that we’re not proud of and that we don’t think through all the way.”...

The Kushner-Kardashian summit marks something of a turning point for the First Son-in-Law. It will be Kushner’s first major act since he was granted a permanent, top-level security clearance last week, after more than a year of negative headlines about why his clearance had been delayed and then downgraded. Among White House tea-leaf readers, the news was received as evidence that perhaps Kushner’s legal exposure in Robert Mueller’s investigation might not be as severe as many had believed it to be, and gave credence to the idea that his standing in the West Wing might be somewhat restored. Those in Ivanka and Kushner’s social orbit in New York joked with each other about how much money they stood to lose on various bets they had made over when Kushner would be indicted by Mueller.

But Kushner and Ivanka are not focused on the chatter, or their old friends in New York — at least not on Wednesday. They plan to host Kardashian for dinner at their home after her presidential sit-down, a private evening with the most famous sibling of America’s other First Family.

I somewhat doubt that Kimme will "make a legal argument to President Trump," but I am hoping somebody (perhaps even Jared Kushner) has thought to urge Ms. Kardashian to talk about excessively sentenced federal defendants beyond Alice Marie Johnson.  In a prior post, I noted that the CANDO website has a detailed list of Top 25 Women who deserve clemency from federal prison.  And the Life for Pot site has its own detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuanha and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  Notably, over the weekend, Ms. Kardashian did tweet here about the story of Matthew Charles (discussed in this recent post).  

It would be something for Kimme to get clemency relief for a single federal defendant; it would be something special is she could secure clemency relief for a number of individuals.  

Prior related post:

May 30, 2018 in Clemency and Pardons, Examples of "over-punishment", Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Two great new judicious commentaries on the federal sentencing guidelines

A helpful reader made sure I did not miss this latest issue of the Hofstra Law Review, which starts with a Colloquim on the topic "Thirty Years Later: A Look Back at the Original U.S. Sentencing Guidelines."  The issue contains  two notable articles authored by two notable jurists.  Here are links to the pieces and their opening paragraphs:

"The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future" by Stephen G. Breyer

Thank you very much. It is terribly nice for me to be here at Hofstra.  Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them.  Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission.  While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.

"The Federal Sentencing Guidelines: A Good Idea Badly Implemented" by Jon O. Newman

The best way to mark the thirtieth anniversary of the Federal Sentencing Guidelines is to candidly admit that they are a classic example of a good idea badly implemented.  I propose to consider how the good idea originated, how the first Federal Sentencing Commission implemented it, how the Supreme Court has dealt with the Sentencing Guidelines, what is good about the Guidelines, what are the principal defects of the Guidelines, and the most important step that can now be taken to improve the Guidelines and realize the expectations of those of us who favored sentencing guidelines.

May 30, 2018 in Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0)

"Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp — And Some Pathways for Change"

The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty.  This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.  The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts.  Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach.

A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases.  At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system.  Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

May 30, 2018 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms

The Hill this morning has this extended article under the headline "Senate grapples with prison reform bill." The piece reinforces my fear that criminal justice reform efforts are on the brink of stalling in the upper chamber of Congress. Here are excerpts:

Senate negotiators are warning they are not close to a deal that would allow the prison reform bill to move quickly.

Instead, the fight is pitting two influential GOP senators — Cornyn and Chuck Grassley (Iowa), the Judiciary Committee chairman — against each other as they jockey for competing bills. “We’ve got work to do here on building consensus … but right now we don’t have it,” Cornyn said last week about what happens to prison reform in the Senate.

The GOP divisions could scuttle any chance that the Trump-backed legislation becomes law this year, with leadership unlikely to bring up legislation that would highlight divisions within their own party ahead of the midterm elections. Both Cornyn and Grassley are signaling they plan to press forward with trying to build support for their own separate bills once the Senate returns to Washington, D.C., next week.

Asked if he would budge on his opposition to a prison reform–only bill, Grassley responded, “No.” “We’re going to take up my bill. Or I should say, my bipartisan bill that’s got 28 co-sponsors — equal number Republicans and Democrats....  What the House does through that legislation is about the equivalent of a spit in the ocean compared to what the problem is of too much imprisonment,” Grassley added.

Grassley and Sen. Dick Durbin (Ill.), the No. 2 Democrat, have introduced broad criminal justice reform legislation that would pair prison reforms to changes in sentencing, including reductions in mandatory minimums for certain drug offenses while increasing mandatory minimums for other offenses. Both senators say they’ve made a deal not to separate the prison and sentencing reform components despite pressure from the White House. But that bill is unlikely to be taken up given GOP control of Congress and opposition from key members of the Trump administration. Attorney General Jeff Sessions was an outspoken opponent of the criminal justice reform bill when he served in the Senate.

Grassley acknowledged that he has not convinced Senate Majority Leader Mitch McConnell (R-Ky.) to bring the criminal justice reform bill to the floor. “You’ve got to remember that McConnell doesn’t like the bill, and all I can say is that you ought to let a Republican president who needs a big, bipartisan victory have a bipartisan victory,” he said.

The Kentucky Republican did not move criminal justice reform legislation in 2015 or 2016 amid vocal pushback from four GOP senators. The then-Obama administration supported the bill, and senators in both parties said they had 60 votes to pass it. Supporters of the narrower prison reform–only legislation are seizing on the opposition from key Republicans and the Trump administration as they push for their bill....

Cornyn added that the decision boils down to either passing prison reform or accepting that Congress will take no action for the foreseeable future in the criminal justice space. But it’s unclear if McConnell would be willing to move a bill without Grassley’s support....

And on Capitol Hill, Sen. Tom Cotton (R-Ark.), one of Trump’s closest allies in the Senate, is privately raising concerns about the bill. A spokeswoman for the senator said Cotton has “concerns with provisions in the bill pertaining to lenient treatment for heroin and fentanyl traffickers.” Cotton, Sessions and GOP Sens. David Perdue (Ga.) and Orrin Hatch (Utah) were a small but vocal group of Republicans senators deeply opposed to broader criminal justice legislation that included both prison reform and changes to mandatory minimum sentencing.

Cornyn acknowledged that he has spoken to Cotton about trying to address his issues with the prison reform bill. “I’ve told him we’re going to work with him and come up with something that I think he’ll be able to support,” Cornyn said, “but he did express some concerns.”

Some of many prior related posts:

May 30, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

"Trump wishes he hadn't picked Jeff Sessions for attorney general"

The title of this post is the headline of this new CNN article.  My first snarky reaction to this headline was to mutter "join the club" and also to recall my failed advocacy here for Ted Cruz to be Prez Trump's AG pick.  Especially given Jared Kushner's obvious commitment to significant criminal justice reforms, I think advocate for sentencing reform have to look at this headline and continued to imagine what might have been had Prez Trump picked another AG.

That all said, I cannot help but wonder if Prez Trump's continuing disaffinity for AG Sessions (and enduring affinity for Jared Kushner) can still serve as a kind of good news for sentencing reform advocates.  Though I doubt AG Sessions will resign, it seems unlikely Prez Trump will fully trust him or back him on issues like criminal justice reform or marijuana reform that obviously divide folks in the Trump Administration and throughout the GOP leadership.  So, if the Senate manages to get some piece of sentencing reform into a federal criminal justice bill, AG Sessions' advocact of a veto will not likely carry the day with Prez Trump if Kushner and key GOP leaders are backing the measure.

May 30, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Tuesday, May 29, 2018

The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

Matthew_charles-_march_2018_outside_wpln_1Last year I wrote an article in this special issue of the journal Federal Probation in which I explained why I believe the federal sentencing system has been disserved by the complete abolition of parole.  I have been thinking about that article in conjunction with the story that blew up my twitter feed over the weekend, the story of Matthew Charles described in this Nashville Public Radio piece.  Here are excerpts from a story that should be read in full:

It looks like a party — but Charles isn’t leaving for a big new job, or trying his luck in a new city. He’s going to prison. To finish out a 35-year term for selling crack to an informant in the 90’s.

Charles had already served 21 years before his sentence was cut short as a result of crack guideline changes passed by the Obama administration. But the U.S. Attorney’s office appealed his release on the grounds that Charles was legally considered a “career offender” due to a prior stint in state prison. They said the retroactive change in the law did not apply to him — and a Court of Appeals agreed.

“He’s rebuilt his life and now they’re coming to snatch it,” says "Wolf", who met Charles at a halfway house in 2016. They’ve volunteered together almost every Saturday since, long after fulfilling their community service requirements.  Wolf is talking to John Hairston, an old friend of Charles’ who flew in from Houston.  They’ve seen each other twice in over two decades — but for years, they wrote each other letters.  “The whole thing pisses me off to be honest,” he says, partly to Wolf and partly to the group of guests seated at another table across the lawn, who're listening intently and shaking their heads. “But it underscores how big a need there is for some reform in the justice system. I don’t care what they say.”

Since his release in 2016, Charles has held a steady job. He volunteers every Saturday, has reconnected with his family, and started a serious relationship. But really, his rehabilitation started years prior.

In prison, he took college classes and correspondence courses, he taught a GED program and became a law clerk. With his training, he helped other incarcerated men understand the judicial system long after their public defenders moved on to the next case.

Charles kept the secrets of those who were illiterate so they wouldn’t face ridicule or harassment — he read them letters from the court and drafted filings for them in the library. He organized bible studies and counseled newcomers. Two decades in federal insitututions — from maximum to low security — without a single disciplinary infraction.

Those that know Charles say they can’t understand why the justice system won’t recognize his rehabilitation. But the federal Bureau of Prisons did away with parole and most "good behavior" incentives years ago — even the best behaved must serve out the majority of their term.

Charles says the whole situation feels surreal. "I'm so tired” he says, after his hearing is postponed for the second time. “I am beyond tired. I always say to myself and others, ‘when is enough going to be enough?’”

Last time Charles faced time in prison, he was a drug dealer in his 20’s. At his sentencing in December 1996, a federal judge called Charles “a danger to society who should simply be off the streets.” Charles doesn’t dispute that. Until then, his entire life was embroiled in chaos....

Now in his 50’s, Charles has the support of friends and his community — and even the judge who ordered him back to prison. Everything is different. And yet, he says, nothing's changed.

On March 28, in a courtroom filled with more than two dozen of Charles’ friends, coworkers and loved ones, Judge Aleta Trauger called Charles’ case “sad” and commended his “exemplary rehabilitation.” But, she added that “her hands were tied” and reimposed his original sentence. She gave him 45 days to get his affairs in order.

The ruling from the Sixth Circuit explaining why Charles' sentencing reduction was improper is available at this link. It makes for an interesting read, as it notes that back in 1996 Charles' "recommended guidelines range [was] 360 months to life, but [the sentencing court] varied upward and imposed a 420-month sentence based on Charles’ background and misconduct." (I highlight this line because it itself reflects how the passage of time distorts reality: the original sentencing court did not quite "vary" upward because the concept of a "variance" did not exist prior to the 2005 Booker decision.) 

The initial decision to impose a prison sentence of 35 years rather than just 30 years on Charles may have made perfect sense circa 1996.  As explained by the Sixth Circuit, the district court had to consider "Charles’ many prior offenses: kidnapping a woman on two consecutive days 'for the purpose of terrorizing her'; burglarizing a home; and fleeing from a police interrogation,
shooting a man in the head, and attempting to run off in the victim’s car."  But, obviously, Charles is now a much different man than the man he was when committing all these prior offenses.  But, just as obviously, modern federal sentencing law presents no way to give effect to changed realities because parole and other like mechanisms were vanquished through the Sentencing Reform Act of 1984.

I am a strong supporter of the FIRST STEP Act in part because it includes some parole-like features to enable the early release of offenders who have demonstrated rehabilitation potential in various ways.  (In my Federal Probation article, I describe certain prison reform efforts by Congress as a kind of "parole light.")  But I continue to think the federal system would be even better served by considering a more general return of parole, at least for sentences of a decade or longer, or at least considering the kind of second-look resentencing provisions (allowing judicial modification after serving 15 years of prison sentence) that have been put forward in the new American Law Institute's revised Modern Penal Code sentencing provisions (discussed here and here by leading academics).

May 29, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (22)

"In Justice Today" has now become "The Appeal"

In this post about one year ago I noted the creation of "In Justice Today" a new publication of the Fair Punishment Project at Harvard Law School. The publication had an introductory post that suggested that "the local elected prosecutor" was to be a particular focal point of the new publication's reporting.  Now, via email, I have been told of this (small?) transition:

Dear friends,

I am thrilled to be unveiling the Justice Collaborative’s newly renamed, revamped, and relaunched criminal justice publication: The Appeal. The Appeal, which steps in where In Justice Today leaves off, is a daily news source of original reporting focusing on local criminal justice systems — the most significant drivers of mass incarceration.

In creating The Appeal, we wanted something that was rigorous and hard-hitting, and engaging to the average reader.  We are putting a human face on the practices of local criminal justice systems.  Today, Professor Angela J. Davis outlines the importance of prosecutors, and Raven Rakia and Ashoka Jegroo explore the history of the push to close Rikers Island.  Please check them out and let us know what you think!

It’s my sincerest hope that you enjoy our brand new publication and find it useful in your own work. We will continue digging deep in counties across the U.S. to shed light on the most undercovered parts of the system. 

Too much criminal justice reporting relies on politicians, prosecutors, and law enforcement officials as the arbiters of the truth. We aim to be the journalistic watchdog that changes that.

If you have any feedback on our new look—or just want to draw our attention to something you’d like to see in The Appeal — please drop us a line!

Sincerely,
Sarah Leonard, Executive Editor The Appeal

I sense that local criminal justice systems rather than just local elected prosecutors are now more clearly the focal point of this re-branded effort.  But it seems also that the Fair Punishment Project at Harvard Law School is no longer the main sponsor of this publication, though its new ABOUT page is somewhat opaque.

Whatever the backstory particulars, I always found a lot of interest and value at "In Justice Today" and I presume I will likewise find much of interest and value at "The Appeal."

May 29, 2018 in On blogging, Recommended reading, Who Sentences? | Permalink | Comments (1)

SCOTUS limits reach of Mandatory Victims Restitution Act in Lagos ... and talks about Fourth Amendment

The US Supreme Court handed down two opinions and a dismissal this morning, all from the criminal side of its docket.  The one sentencing decision came in Lagos v. United States, No. 16-1519 (S. Ct. May 29, 2018) (available here).  Here is hope the unanimous opinion by Justice Breyer gets started:

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to

“reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.  In our view, they are limited to government investigations and criminal proceedings.

Got that? The short Lagos opinion goes on to provide a mini-primer on federal restitution statutes, but both the issue and the opinion here ensures this ruling will not be too long remembered.

Also not to be too long remembered is a DIG (dismissed as improvidently granted) from SCOTUS today in City of Hays, Kansas v. VogtNo. 16-1495.  The only SCOTUS decision today likely to get any real attention is a Fourth Amendment ruling in Collins v. Virginia, No. 16-1027 (S. Ct. May 29, 2018) (available here).  Justice Sotomayor starts the opinion for the Court off succintly: "This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not."  Justice Alito dissents alone, starting this way: "The Fourth Amendment prohibits 'unreasonable' searches. What the police did in this case was entirely reasonable. The Court’s decision is not."

The merits aside, the Collins decision will really garner attention because of a lengthy concurrence by Justice Thomas.  Writing alone, he urges the Court to reconsider the reach of the exclusionary rule.  Here is how his opinion starts and ends:

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case.  Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States.  The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting)....

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States.  We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution.  We should do so.

May 29, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 28, 2018

Another helpful review of analysis of huge set of federal sentencing outcomes

In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions."  I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column.  His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts: 

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.  “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”...

It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.

But the study’s findings on how judges’ partisan affiliations affected the racial and gender gaps were new and startling.  “The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.  “We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap.”

The two kinds of gaps appear to have slightly different explanations.  “We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses,” the study said.  “We also find that racial disparities by political affiliation are largely driven by drug offenses.” 

The authors of the study sounded a note of caution.  “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right,’” the authors wrote.  “Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court.”

The study is studded with fascinating tidbits.  Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently.  Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.

Prior related post:

May 28, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)