Friday, May 22, 2015

"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"

The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:

For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.

I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.

Here is some of what she goes on to say about this very interesting topic:

While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established).  There is a trend toward sexual contact with teenage males.  Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.

In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.

Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped.  Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty.  Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.

Of course, I don’t condone this behavior in the least.  I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.

Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men.  Treatment providers aren’t given special instruction in dealing with women.  The treatment programs are written for men, using statistics about male offenders and past treatment models of men.  Imagine!  Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.

At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders.  This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work.  But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.

A lack of evidence should never be the reason for poor rehabilitation.  It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future.  When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon.  By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.

Research about recidivism rates is also based primarily on male populations and varies drastically.  Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all.  But since the law doesn’t differentiate among sex offenders, these studies are nearly useless.  A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child.  The lumping-together of sex offenses creates confusion even while it feeds public hysteria....

Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment.  It does nothing to address the complex emotional choices that led people to their crimes.  Rather, the justice system beats down already hurting women.

May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack (0)

"Federal Sentencing Error as Loss of Chance"

The title of this post is the title of this notable new piece available via SSRN authored by Kate Huddleston. Here is the abstract:

Federal courts have taken the wrong approach to discussing sentencing error.  Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness.  This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error.  What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.

The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance.  Part I highlights the role that probability plays in recent sentencing opinions.  It argues that, as an empirical matter, loss of chance is an accurate way to describe sentencing error given the anchoring effect of the Federal Sentencing Guidelines on sentencing practices.  Part II makes the structural case for conceptualizing Guidelines sentencing error as a problem of probability, arguing that failure to recognize the probability dispute has obscured an underlying debate about the continued vitality of the Guidelines system.  After United States v. Booker, the Sentencing Guidelines are advisory in principle and influential in practice. Part II argues that treating Guidelines error as loss of chance — and a loss that may constitute a fundamental miscarriage of justice — is necessary in order to enforce a Guidelines regime that is neither too rigid nor wholly indeterminate.

May 22, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.

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Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Thursday, May 21, 2015

Examining what qualifies as an LWOP sentence for purposes of Graham and Miller

This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders.  Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):

James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house.  Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.

Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...

But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.

Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.

With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....

Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.

“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children.  The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth.  Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.

Courts have handed down similar rulings in Wyoming, Florida, California, Iowa, and Colorado.  Another case is pending in Ohio.

In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’”  Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”

May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

"How America Overdosed on Drug Courts"

The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine.  The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:

The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine.  Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy.  From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime.  Many drug courts also bar people with long non-violent criminal histories.  Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.

Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true.  “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals.  (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.)  “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”

These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down.  Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem.  That strikes many critics as a manifest injustice.  “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University.  “It’s not stopping the drug war, it’s continuing it by other means.”  Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts.  According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.

May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)

After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?

Download (1)The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":

Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.

It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.

Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.

This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.

Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.

For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”

The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.

Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.

Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.

May 21, 2015 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack (0)

New Vera Institute of Justice report highlights the true, high "Price of Jails"

Vera-300x188The Vera Institute of Justice has just published this important new report titled, "The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration." I received a press release about the report which provides this summary of its coverage and findings:

Hidden costs make jails far more expensive than previously understood, according to a new report released today by the Vera Institute of Justice, The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. Because other government agencies, whose expenditures are not reflected in jail budgets, bear a large share of costs, the report finds that Americans significantly underestimate how much of their tax dollars are being spent on incarceration.

While the U.S. Department of Justice estimated that local communities spent $22.2 billion on jails in 2011, that figure fails to take into account significant costs such as employee benefits and inmate medical care that may not be included in jail budgets. For example, in addition to the $1.1 billion spent by the City of New York Department of Corrections in 2014, other agencies spent $1.3 billion on jail employee benefits, health care and education programs for incarcerated people, and administration, bringing the total cost to $2.4 billion—more than double the official jail budget....

Despite growing national attention to the large number of Americans confined in state and federal prisons, significantly less attention has been paid to local criminal justice systems, where over-incarceration begins. There are nearly 12 million local jail admissions every year — almost 20 times the number of prison admissions, and equivalent to the populations of Los Angeles and New York City combined. The report found that the high cost of jails is most directly tied to inmate population and associated personnel costs, rather than to misspent funds in any one particular budget area.

The report’s findings are based on surveys of 35 jail systems, representing small, medium, and large jails in 18 states from every region of the country, and representing 9% of the total jail population. The survey results confirm that determining the total cost of a jail is not a simple task, even for the agency that runs it. In documenting jail expenses—which in every case surveyed extended beyond the reported corrections budget—and who pays for them, the report finds that, by and large, local taxpayers foot the bill for jails, and the costs are much higher than most people realize.

“Jails are a tremendous public cost,” said Julia Stasch, President of the MacArthur Foundation, which supported the report. “This new report proves those costs are even higher than previously thought, adding urgency to the need for reform that addresses their overuse and misuse in fiscally strapped jurisdictions nationwide.”

In addition to developing a first-of-its-kind survey for jurisdictions to use that accurately measures all of the costs of running a jail, the report reveals:

May 21, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 20, 2015

Nebraska legislature votes by large margin to repeal state's death penalty

As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts."  Here is more:

The vote was 32 to 15 in Nebraska's unicameral Legislature.  If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973.  The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.

Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.

Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions.  Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.

Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.

May 20, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Spotlighting who profits from "Piling on Criminal Fees"

Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:

Criminal courts sometime function as fee-generating machines....  The problem here is not any single criminal fee; the problem is how they stack up to create injustice.  That's why we are calling for a statewide Commission on Criminal Fees.

In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis.  We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice.  As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines.  This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...

The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests.  What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?

And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill.  Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.

Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike.  The trouble comes when nobody minds the total effects of all these fees on individuals.  Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero.  We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.

May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Has death penalty administration now become a "testing ground for toxic drugs"?

The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs."  Here are is a passage from the center of the lengthy article:

Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart.  The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs.  Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.

As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago.  As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails.  States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions.  They have turned to mail-order pharmaceutical suppliers and used untested drugs.  They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die.  The machinery of death in the United States has become a kluge.

In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross.  A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them.  The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history.  The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.

Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations.  No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail.  Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.

May 20, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 19, 2015

"NY Senate votes to create registry of violent felons"

The title of this post is the headline of this notable new AP article sent my way by a helpful reader.  Here are excerpts:

The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.

The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend.  The boyfriend had a prior conviction for a violent felony.

Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law.  The murder of my daughter and granddaughter devastated our family.  If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...

The Senate passed the bill Monday.  Similar legislation is pending in the Assembly but no vote has been scheduled.

Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Notable sentencing and clemency comments from newly-confirmed Deputy Attorney General

I just came across this recent Washington Post profile of Sally Quillian Yates, the new number two at the Department of Justice.  The piece is headlined "New deputy attorney general: ‘We’re not the Department of Prosecutions’," and here are some notable excerpts:

The odds were stacked against lawyer Sally Quillian in her first trial in rural Barrow County, Ga. Before an all-white jury, she was representing the county’s first African American landowning family against a developer over a disputed title to six acres of land. The family was so distrustful of the court system back in the 1930s that they hadn’t recorded their deed.  Instead, the family’s matriarch kept the deed, written on cloth, folded inside her dress every day while she worked the fields.  Now, a developer was trying to take their property, and Quillian was arguing the case using an arcane legal theory.

“I had no idea what I was doing,” Quillian — now Sally Quillian Yates — recalled. “I had never tried a case before.”  But the jury came back with a verdict in favor of her client. “These 12 white jurors, who knew and went to church with and socialized with everybody on the other side, did the right thing,” said Yates, who was then at a private firm.  “This court system that my client’s family had mistrusted so much that they wouldn’t even file their deed had worked for them as it’s supposed to and had given them back the property that had been so important to their family all of these years.”

That case some 30 years ago had a deep impact on Yates, who went on to become a prosecutor in Atlanta for 20 years.  In 2010, President Obama nominated Yates to be the U.S. attorney for the Northern District of Georgia.  Last week, she was confirmed to be deputy attorney general , the second-highest-ranking position at the Justice Department.  A bottle of champagne still sits in her fourth-floor corner office, which overlooks Constitution Avenue and where senior officials celebrated her ­84-to-12 Senate vote....

One of Yates’s priorities will be to follow through with the criminal justice reform efforts begun by Attorney General Eric H. Holder Jr., including the push to give clemency to “nonviolent drug ­offenders” who meet certain criteria set out by the department last year, she said in her first interview since taking the job.

Yates and other prosecutors enforced the harsh sentencing policies from the 1980s and ’90s.  “Those policies were enacted at a time of an exploding violent-crime rate and serious crack problems,” Yates said.  “They were based on the environment we were in. But things have changed now, and violent crime rates have dropped dramatically.”

More than 35,000 inmates are seeking clemency, but a complicated review process has slowed the Obama administration’s initiative.  In February, Obama commuted the sentences of 22 drug offenders, the largest batch of prisoners to be granted early release under his administration and the first group of inmates who applied after the new criteria were set.

“Certainly, there’s some growing pains at the beginning,” Yates said.  “There’s start-up time involved in this. I think all of us are frustrated that it’s taken longer than we would like for this to be operating as efficiently as possible.  But I think we are headed down that road now. There are going to be more recommendations from the department, and I would expect more commutations that the president will be issuing.”...

Yates commutes every other weekend to Atlanta to be with her husband, who is the director of a school for children with learning disabilities, and to plan the wedding of her 24-year-old daughter, the older of two children.  She said the back-and-forth is worth the opportunity to influence criminal justice issues, including civil rights and sentencing reform, at the highest level.

She plans to urge lawmakers on Capitol Hill to pass legislation to change sentencing policies. “Certainly, I don’t think I can ever be accused of being soft on crime,” Yates said. “But we need to be using the limited resources we have to ensure that we are truly doing justice and that the sentences we’re meting out are just and proportional to the crimes that we’re charging.”

“We’re not the Department of Prosecutions or even the Department of Public Safety,” Yates said. “We are the Department of Justice.”

May 19, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht

As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods.  Here are the details:

When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?

In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks.  The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.

“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing.  “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”

The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs.  One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales.  That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems.  And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions.  Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.

Regardless, Ulbricht isn’t likely to receive a light sentence.  The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time.  In all, he faces a minimum of 30 years in prison and a maximum of life.  Ulbricht’s defense team has already said it plans to appeal the case.

The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road.  But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....

To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance.  Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users.  He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”

The full text of this Ulbricht Sentencing Defense Letter can be accessed at this link.

Prior related posts:

May 19, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Some recent posts of note from Marijuana Law, Policy and Reform

I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform in a few weeks. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans: 

May 19, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Monday, May 18, 2015

Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl

The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight.  Here are excerpts (with my emphasis added):

The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.

About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....

While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....

Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.

The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...

Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.

So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....

The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.

Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.

In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....

Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."

I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.

Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.

May 18, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Six new SCOTUS opinions, but nothing too exciting for sentencing fans

The next six weeks are the SCOTUS law nerds version of March Madness: the regular SCOTUS season of hearing oral arguments and deciding relatively easy cases are over, and the last weeks of the Term are going to involve the handing down of many notable opinions on many notable topics.  The madness began today with the release of six opinions, three of which had criminal justice elements, but none of which were all that controversial nor especially consequential.

Howard at How Appealing has a great round-up of the basics of the six new opinions here, and Kent at Crime & Consequences has this helpful substantive review of the three rulings with some criminal justice consequence.

For those looking to set their (always tentative) SCOTUS calendars, I will predict now that we get the Elonis Facebook threat ruling either next Tuesday or the following Monday but will not get any other significant criminal justice ruling until the last few weeks of June.

May 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:

It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies.  Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.

Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons.  It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031.  "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.

Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police.  Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names.  The registries are widely monitored by parents, potential employers and cautious neighbors.

To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online.  But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional.  For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.

Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....

Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors.  No one was charged.

At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law.  But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life.  "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."

But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people.  The supporters also dismiss the research, saying it's impossible to determine who might re-offend.  They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.

"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."

Many parents say the registries makes them feel safer.  Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know."  Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."

Sex offender registry laws were first passed in the 1990s following a string of horrific child murders.  The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.

Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives.  In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....

Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective.  And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law.  For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.

Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes.  A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....

Nationally, there are about 800,000 people registered as sex offenders across the 50 states.  Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens.  It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....

Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant.  Some, though, think tougher laws are in order.  And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.

Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."

A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."

J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees.  He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....

While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.

May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack (0)