Sunday, November 27, 2016
AP report provides confusing non-answer as to "What is the future of U.S. prisons under Trump administration?"
The quoted question in the title of this post comes from the headline of this AP article. Because there are a number of strange and confusing elements to this AP piece, I am not sure it does even a reasonable job trying to answer the question it poses. I will explain some of my concerns with this quirky piece after quoting it at length with some highlighting of key phrases and passages:
The population of American prisons is likely to rise for the first time in nearly a decade with President-elect Donald Trump’s promise to detain and deport millions of immigrants who are in the country illegally and his selection of tough-on-crime Sen. Jeff Sessions to the nation’s highest law enforcement post.
If so, one of the prime beneficiaries would be the private companies that operate many of the nation’s prisons. The stock market seems to agree. A day after the election, CoreCivic Co., formerly Corrections Corporation of America, saw the biggest percentage gain on the New York Stock Exchange with shares climbing 43 percent. Shares of Geo Group, another private prison company, also jumped 21 percent.
The federal prison population had been trending down for nearly a decade when the Obama administration announced in August that it would phase out its use of some private facilities. The announcement followed a Justice Department audit saying private facilities have more safety and security problems than government-run lockups. The policy change did not cover private prisons used by Immigration and Customs Enforcement, though federal officials have said they are considering phasing out private contractor immigration facilities.
Trump, however, said during his campaign that the nation’s prison system was a mess and voiced support for private prisons. “I do think we can do a lot of privatizations and private prisons. It seems to work a lot better,” Trump told MSNBC in March, though he didn’t offer any details on what that might mean for the federal prison system.
Immigration and Customs Enforcement holds up to 34,000 immigrants awaiting deportation. Forty-six of the roughly 180 facilities in which ICE holds those immigrants are privately run, with about 73 percent of detainees held in the private facilities, the agency says.
“Trump was saying during his 100-day plan that mandatory minimums for people re-entering the country would be set at two years -- that’s going to require a longer-term need for beds,” said Michael Kodesch, a senior associate with financial services firm Canaccord Genuity Inc. Immigration detention centers are particularly profitable for private prison companies because they command a higher rate for each inmate bed, he said....
Sessions, Trump’s pick for attorney general, was among a handful of Republican senators blocking a bipartisan bill that would reduce lengthy sentences for low-level drug offenders. McLaurine Klingler, a spokeswoman for Sessions, said no one on Sessions’ staff was immediately available to talk about his feelings on the DOJ’s use on private prisons.
CoreCivic spokesman Jonathan Burns said the company doesn’t take positions on proposals, legislation or policies that would determine the basis of an individual’s incarceration or detention. He said the company instead works to “educate lawmakers on the benefits of public-private partnership generally and the solutions CoreCivic provides.”
I likely would need to write a few law review articles to unpack all the hash in this AP report, but the second highlighted passage above reveals a big part of the mess that this article reflects. Specifically, the AP article suggests that "private companies ... operate many of the nation’s prisons"; But folks at ACLU note here that "for-profit companies are responsible for approximately 6 percent of state prisoners, 16 percent of federal prisoners, and inmates in local jails in Texas, Louisiana, and a handful of other states." In other words, private companies actually operate a very small percentage of the nation's prisons.
As the AP article hints, Prez-Elect Trump and his administration might want to grow rather than shrink reliance on for-profit companies for incarceration. (Even if true, it would matter a lot whether Trump would want just the federal system or also state systems to make greater use of private prisons.) But Trump's comment praising privatization seems based on a (sound?) view that the very best private prisons might function more effectively and efficiently than the very worst public prisons responsible for our current mass incarceration "mess." So, even if Prez-Elect Trump and his administration were to make a huge commitment to, say, doubling the use of private prisons nationwide, that commitment alone would not itself make it "likely" for the "population of American prisons ... to rise" in the coming years. (Indeed, given the incarceration reform measures enacted in key states at the same time Trump was elected president, I am inclined to predict that it is more likely we will see some declines in the population of American prisons in the coming years.)
Finally, though it is true AG-designate Jeff Sessions was opposed to federal statutory sentencing reform throughout 2016 while serving as Senator Sessions from Alabama, his departure from the Senate might now make it more likely that some form of federal statutory sentencing reform gets passed by Congress in 2017 or 2018. This is true not only because Sessions may get replaced in the Senate by someone at least slightly more likely to support federal statutory sentencing reform, but also because opposition to reform by a number of Senators in 2016 was based in part on a desire to preclude Prez Obama from having a legacy criminal justice reform achievement. Once Prez Obama is out the door and the (toxic?) symbolism of his affinity for sentencing reform is just a recent memory, I think some (modest?) form of federal statutory sentencing reform is likely to make it through Congress before too long.
"Oregon Death Penalty: A Cost Analysis"
The title of this post is the title of this notable research report released earlier this month. This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:
A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.
Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.
Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.
The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.
Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.
According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”
Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.
Saturday, November 26, 2016
Terrific content and context for Prez Obama's clemency work at Pardon Power
Long-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices. Of particular importance and value, P.S. Ruckman's work at Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency. Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:
Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:
It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.
By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.
Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have — for the most part — been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....
The federal prison population has boomed since Wilson's day. The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone. The merciless neglect of the current clemency system needs to tanked. The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy. The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.
It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States. It is time for mercy to emerge once again as a regular feature of criminal justice. It's not just about numbers. It is about balance, fairness. It is about rehabilitation and restoration. It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.
So many marijuana reform developments and questions, with so many more on 2017 horizon
Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform. But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.
The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:
Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver
This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:
Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven. Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.
In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.
"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."
Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.
Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.
To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence. And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified. Hmmm.
Friday, November 25, 2016
New talk in New Jersey of bringing back capital punishment a decade after state abolition
The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature. Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty." Here are the highlights:
Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty. "But I do believe it's an option that should be there, however seldom used."
The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963.... Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.
In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.
Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there. The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.
Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs. Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report. The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually. The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.
Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected. "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River. Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.
Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.
West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.
Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."
Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms. Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment. Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state. Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.
"Intuitive Jurisprudence: Early Reasoning About the Functions of Punishment"
The title of this post is the title of this intriguing new research essay from a group of academics connected to the University of Chicago's Department of Psychology. The piece, authored by Jessica Bregant, Alex Shaw and Katherine Kinzler, has been posted on SSRN with this abstract:
Traditional research on lay beliefs about punishment is often hampered by the complex nature of the question and its implications. We present a new intuitive jurisprudence approach that utilizes the insights of developmental psychology to shed light on the origins of punishment intuitions, along with the first empirical study to test the approach.
Data from 80 child participants are presented, providing evidence that children expect punishment to serve as a specific deterrent, but finding no evidence that children expect punishment to have a general deterrent or rehabilitative effect. We also find that children understand punishment in a way that is consistent with the expressive theory of law and with expressive retributivism, and we present evidence that an understanding of the value of punishment to the social contract develops throughout childhood.
Finally, we discuss the application of the intuitive jurisprudence approach to other important legal questions.
Thursday, November 24, 2016
Thankful for so much for so many reasons ... including all sorts of 2016 sentencing law and policy developments
Reviewing some past Turkey Day posts, I noticed my wise tendency to just express thanks in this space on this day for giving thanks. For example, this post five years ago started this way: "I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start. I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that." I now find it funny and fitting that circa 2016 I cannot even remember what folks were spending so much time complaining about on Thanksgiving 2011.
In the wake of a jarring election season and result, I know what most folks are busy complaining about now. But I remain thankful for so much for so many reasons today, and that includes an array of interesting and dynamic sentencing law and policy developments that transpired over the last year. (I will wait until next month to do a few formal 2016-in-review posts about sentencing developments, but I am eager now to assert that I think everyone who follows sentencing law and policy can and should find something encouraging to be thankful for this holiday season.)
And, speaking of being thankful and 2016 sentencing law and policy developments, I want to remind readers of this Federal Sentencing Reporter call for commentaries. And, just to stir the pot, I will also link to two prior Turkey Day posts that might generate some engaging discussions:
Wednesday, November 23, 2016
"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy
The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett. But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:
One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia. And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:
1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...
Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....
The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.
2. The court will get back to hearing its normal caseload.
During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016.... [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.
3. The court is not going to undo affirmative action programs — at least not immediately....
4. The court could move to weaken labor unions and expand gun rights.
For complicated reasons, I am not sure I would make book on most of these predictions. But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).
Tuesday, November 22, 2016
Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:
President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.
Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.
“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”
The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.
“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”
On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:
As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.
The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness. But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.
The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances. The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....
And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today. While we are proud of the progress we’ve made so far, as I have said before, our work is still not done. We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.
"Trump will not pursue charges against Clinton, aide says"
The title of this post is the headline of this new FoxNews piece, which reports these details:
President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.
In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.
The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....
Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.
Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State.
UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."
Monday, November 21, 2016
"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"
The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:
I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.
Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.
First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.
His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.
Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.
Friday, November 18, 2016
So who is happy or sad about Jeff Sessions for Attorney General?
consider this an open thread.
UPDATE: I just remembered that Senator Jeff Sessions was long an advocate for equalizing crack and powder cocaine sentences. Through the FSA enacted in 2010, the notorious 100-1 crack/powder ratio was reduced to roughly 18:1. I would think it very valuable and very wise for various folks interested in drug sentencing reform to unearth and promotes just what Senator Sessions said in the past on this front.
Wednesday, November 16, 2016
A few (of many, many, many) reasons I am rooting really, really, really hard for Ted Cruz to be our next Attorney General
I am so excited by this developing news that Ted Cruz is perhaps going to be our nation's next Attorney General. Let me report the basic news and then set out just a few reasons why I think all Americans who are committed to the rule of law — including the most ardent Trump supporters and especially the most ardent Trump haters — should want Prez-Elect Trump to be calling Cruz, rather than, "Lyin' Ted," Attorney General Rafael Edward Cruz:
President-elect Donald Trump is considering nominating Texas Senator Ted Cruz to serve as U.S. attorney general, according to a person familiar with the matter.
Cruz, 45, was at Trump Tower in New York on Tuesday. When approached by reporters on his way out, Cruz said the election was a mandate for change but didn’t say he was under consideration for a job.
Cruz unsuccessfully sought the Republican presidential nomination. He and Trump were at odds during the primary, viciously attacking one another. Trump nicknamed Cruz “Lyin’ Ted.” Cruz didn’t endorse Trump during a speech at the Republican National Convention in Cleveland. In September, relations between the two men seemed to improve when Cruz said he would vote for Trump.
I could likely write a hundred posts explain why everyone interested in criminal justice reform generally, or sentencing reform and marijuana reform in particular, should be much more excited about Ted Cruz as Attorney General than any of the other names that have been floated. For now, I will just start with the three main reasons I am so thrilled:
1. The profoundly personal: Like far too many people, I tend to assume people who have a similar background to me think a lot like me. Ergo, I must admit that my (unhealthy?) "man love" for Ted Cruz may have a lot to do with these aspects of his background (via Wikipedia):
Cruz graduated cum laude from Princeton University in 1992 with a Bachelor of Arts in Public Policy from the Woodrow Wilson School of Public and International Affairs.... Cruz's senior thesis at Princeton investigated the separation of powers; its title, Clipping the Wings of Angels, draws its inspiration from a passage attributed to US President James Madison: "If angels were to govern men, neither external nor internal controls on government would be necessary." Cruz argued that the drafters of the Constitution intended to protect the rights of their constituents, and that the last two items in the Bill of Rights offer an explicit stop against an all-powerful state.
After graduating from Princeton, Cruz attended Harvard Law School, graduating magna cum laude in 1995 with a Juris Doctor degree. While at Harvard Law, he was a primary editor of the Harvard Law Review...
Cruz married Heidi Nelson in 2001. The couple has two daughters, Caroline and Catherine.... She is currently taking leave from her position as head of the Southwest Region in the Investment Management Division of Goldman, Sachs & Co. and previously worked in the White House for Condoleezza Rice and in New York as an investment banker. Cruz has joked, "I'm Cuban, Irish, and Italian, and yet somehow I ended up Southern Baptist."
As some readers may know, I graduated from the same university and law school as Senator Cruz (two years earlier, so I never met him), and I also was extremely lucky to meet and marry a beautiful blonde woman who is a lot different than me (and smarter than me) and who has blessed me with two daughters.
2. The principled political: I have long been impressed with Cruz's willingness and eagerness to combine political acumen with principled commitments. Though I tend not to be a fan of the tactic of shutting down the government, I am a fan of anyone who will be driven even to the point of serious career risk to make a principled stand based on principled beliefs. This Cruz character was on display throughout the 2016 campaign: at first, before the voting started, Cruz worked with Donald Trump because he say Trump as a voice for outsiders. Once the voting started, Cruz treated Trump with respect and also tried to highlight how he was more principled and had more personal character than Trump. Then, rather than avoid going to the Republican National Convention (as did Gov John Kasich and other establishment types that Trump defeated), Cruz went into the Trumpian lion's den and told all Republicans and all Americans to vote their conscience.
Now that Americans in key states have all voted their conscience and Trump is Prez-Elect, Cruz is not licking his wounds and plotting how to make Trump fail. Instead, Cruz is apparently willing and perhaps eager to serve all Americans in the Executive Branch after a number of years in which he served only Texans in various ways as a state official and then as a US Senator. Moreover, this past political history (not to mention his Princeton University senior thesis) would seem to ensure that Cruz would not serve as a Trump toady as Attorney General. I make this point because I think the last two Presidents first selected (ground-breaking) accomplished lawyers to serve as attorney general (Alberto Gonzales and Eric Holder) who were, in my view, not-very-successful in part because they were perceived to be (and likely were) far too cozy personally and politically with the President.
3. Criminal justice reform: There are dozens of reasons I think an Attorney General Cruz would be great for adding momentum to the criminal justice reform movement. I will not try to list all those reasons here and will just instead link to prior posts on this blog highlighting some reasons I sincerely hope I get to talk about Attorney General Cruz on this blog in the coming months and years, with a few posts emphasized that I think everyone MUST read ASAP:
"Race, Place, and Capital Charging in Georgia"
The title of this post is the title of this new article authored by Sherod Thaxton, which seems especially timely because Georgia has an execution scheduled for this evening that seems likely to go forward and would result in Georgia having executed more condemned murderers so far this year than Texas. Here is the abstract:
The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality. In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts. I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period. The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.
Tuesday, November 15, 2016
Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
As explained in this post eight months ago, I was deeply disappointed that Prez Obama "decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit." As this sentence was meant to highlight, my disappointment in the selection by Prez Obama was focused on six particular attributes of Judge Garland (and Justice Scalia), and here in rank order is what I disliked from most bothersome to least:
1. Old: Garland at age 63 was the oldest person nominated to be an associate Justice in over 100 years other than Prez Nixon's nomination of Lewis Powell at age 64. With all due respect to people who are eager to work well after retirement age, I generally think it better for most jurists after a two decades on the bench to be thinking seriously about retirement, rather than about starting a new job.
2. Harvard Law School: With all due respect to my alma mater and its rivals Yale and Stanford, only two of the previous 16 nominees to the Supreme Court did not attend at some point HLS or YLS or SLS: John Paul Stevens (Northwestern) and Harriet Miers (SMU). Though I am proudly a product of elite coastal educational institutions, my 20 years teaching at Ohio State (and teaching as a visitor at Colorado and Fordham) has reinforced and deepened my strong belief that a whole lot of elite lawyers and supremely qualified jurists have degrees from law schools other than Harvard, Yale and Stanford.
3. DC Circuit Judge: Even after Justice Scalia's passing, three of the current Justices had previously served on the DC Circuit (Chief Justice Roberts and Justices Ginsburg and Thomas). As a close follower of criminal justice jurisprudence (which makes up almost 50% of the SCOTUS docket), there are many reasons I think judicial experience as a DC Circuit Judge is especially bad: (a) the DC Circuit sees very few criminal cases and zero state habeas cases, (b) the DC Circuit is "inside the Beltway" and so judging is always going to be distinctly "politicized" on that court, and (c) the very few criminal cases DC Circuit judges do see are highly unrepresentative of criminal cases throughout the nation. Among the reasons I have liked the last three appointments to SCOTUS (Justices Alito, Sotomayor and Kagan) is because none of them came up from the DC Circuit; also Justice Sotomayor had been a federal district judge before becoming a circuit judge, and Justice Kagan had never been a judge. I sincerely believe that the Supreme Court's criminal justice jurisprudence has improved considerably in recent years thanks to the collective work of Justices Alito, Sotomayor and Kagan (and I say this as one of the few fans of the Blakely/Booker cases which predate their arrival).
4. Formerly worked for USDOJ: Regular readers are likely aware of my complaints about the persistent appointment of what I might call "big government" prosecutors/insiders, i.e., people who spent at least some of their formative professional years advocating on behalf of (ever-exanding) government powers. Here are snippets from the official SCOTUS bios of the last five confirmed SCOTUS appointments to the Supreme Court: "Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor" (Breyer); "Special Assistant to the Attorney General" (CJ Roberts); "Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey" (Alito); "Assistant District Attorney in the New York County District Attorney's Office" (Sotomayor); "Solicitor General of the United States" (Kagan). Those eager for courts to check and limit the powers of governments (especially the federal government) need not look past these professional realities to understand why it so often seems that "the little person" asserting rights against some big government rarely prevails before a group of people who, in many, many, many ways, owe their professional success to the increasing size of government with fewer and fewer constitutional restraints.
5. Male: According to this Wikipedia entry, as of 2016, there have been 161 formal nominations to SCOTUS, and only five have been women (O'Connor, Ginsburg, Meirs, Sotomayor, Kagan). For those good at math, you should know that this is just over 3% of all appointments (and, disgracefully in my view, a bunch of men bullied Meirs into withdrawing before she even got a hearing and she was replaced by Justice Alito). As of the 2010 census, women comprised 51% of the US population, and I am so proud that Prez Obama increased the historical number of women appointed to SCOTUS from around 1.8% to 3.1%. But, especially as the father of two teenage daughters, I am not quite ready to say "you have come a long way, baby."
6. White: Of 161 formal SCOTUS nominees, only three have been people of color (T. Marshall, Thomas, Sotomayor). Given that 72% of the nation identified white as of the 2010 census, I suppose I should just be grateful Prez Obama nominated one person of color to SCOTUS. But, beyond the fact that now close to 25% of the nation identifies black or Latino, there are lots of other large diverse minority groups in the US, as this official US Census article notes. For example, as of 2010, Asians were now 5% of the US population, and "grew faster than any other major race group between 2000 and 2010." In addition, I think a powerful argument might be made, especially given the exclusive federal jurisdiction in Native lands and on many US Islands, that SCOTUS ought to have someone from the 2.5% of the US population that consider themselves at least in part "American Indian and Alaska Native (5.2 million) and Native Hawaiian and Other Pacific Islander (1.2 million)."
So, based on this discussion and my prior criticism of Prez Obama's nomination of Judge Garland, I think my ideal pick to replace Justice Scalia would be (1) young (ideally under 50), (2) an alum of some school other than HLS, YLS or SLS, (3) not a DC Circuit Judge, (4) not a former prosecutor or DOJ employee, (5) a woman, and (6) not white. For the record, in case anyone cares or thinks my own biases color my judgment, I satisfy only three of these six criteria — as does, quite interestingly, Prez Obama and Prez-Elect Donald Trump and defeated candidate Hillary Clinton (though none us satisfy the same three of these six criteria).
I have not yet had a chance to drill down deeply into all 21 of the lawyers appearing on Prez-Elect Donald Trump's SCOTUS not-so-short list to see who may satisfy the most of my ideal criteria, but I was inspired to do this post by some recent articles from The National Law Journal and the New York Times discussing the diversity on some attributes of some of the persons on the Trump SCOTUS list. I do not believe there is a woman of color on the Trump list, so I think it may be impossible for any of the 21 to hit all of my key six diversity attributes. But it is certainly possible (and I am hopeful) that there are more than a few candidates on the list who satisfy five or at least four of these attributes. And in the wake of Prez -Elect Trump's past criticism of a federal judge based on his ethnicity, I suspect I am not the only one now culling his lists on various distinct diversity grounds.
And, to preempt any complaints that I am worrying way too much about "identity politics," as an academic in a University community that talks a lot about diversity attributes, I could readily devise a long list of other attributes that could also be important to consider if we aspire to have SCOTUS become a more "representative" institution: e.g., personal or professional history (a SCOTUS nominee could be a non-lawyer); religion (e.g., no Mormons or avowed atheists have even been a Justice); military service (who was last veteran on SCOTUS?); socio-economic status (who was last first-generation college SCOTUS nominee?), marital/parenting history (the last two nominees were single), disability, sexual orientation, citizenship or criminal history and on and on.
"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:
In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.
But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....
To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.
Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”
Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....
There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”
Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”
In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.
Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):
Prez Washington:I wanna talk about [clemency righting]I want to warn against partisan fightingPick up a pen, start writingI wanna talk about what I have learnedThe hard-won wisdom I have earned...The people will hear from meOne last timeAnd if we get this rightWe’re gonna teach ‘em how to say GoodbyeYou and I—
Mr. President, they will say you’re weak
No, they will see we’re strong
Your position is so unique
So I’ll use it to move them along
Why do you have to say goodbye?
Prez Washington:If I say goodbye, the nation learns to move onIt outlives me when I’m goneLike the scripture says:“Everyone shall sit under their own vine and fig treeAnd no one shall make them afraid.”They’ll be safe in the nation we’ve madeI wanna sit under my own vine and fig treeA moment alone in the shadeAt home in this nation we’ve madeOne last time
Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris
A horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts. This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me. Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):
A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.
In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls. "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."
The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days. Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.
Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory.
It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work. Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.
The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car. Flat out." If Cooper was visible, Boring said, "the defendant is guilty of all counts." After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.
Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life." To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.
Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument. Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors. The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."
The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography. Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car. Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.
Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.
Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:
1. Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?
2. Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" document, requires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?
3. Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?
November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)
Monday, November 14, 2016
"A comeback for the death penalty?"
The question in the title of this post is the headline of this CNN commentary authored by Austin Sarat. Here are excerpts:
For supporters of capital punishment the most consequential development was the election of Donald Trump. Trump is such a vocal and enthusiastic supporter of capital punishment that, in December of 2015, he promised members of the New England Police Benevolent Association that he would issue an executive order as president containing the "strong, strong statement" that he wants the death penalty for those found guilty of killing a police officer. "Anybody," Trump said, "killing a policeman, a policewoman, a police officer, anybody killing a police officer: Death penalty is going to happen, okay?"
Trump's election is likely to put on hold any prospect that the Supreme Court will take up Justice Stephen Breyer's recent invitation to his fellow justices to reconsider the constitutionality of capital punishment.
The results of referendum questions on the ballot in California, Nebraska and Oklahoma also brought bad news for abolitionists. Voters in California delivered a double-barreled blow. They rejected Proposition 62, a measure which would have replaced capital punishment for murder with life in prison without parole. They also approved by a narrow margin a separate measure intended to speed up executions. That measure designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals.
Nebraska voters, by a margin of 61% to 39%, approved reinstating that state's death penalty one year after state legislators voted to abolish it. In Oklahoma, 66% of voters supported State Question 776 declaring that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution."
Despite these electoral victories, the likelihood of a reversal of fortune for capital punishment is remote. The high costs of capital prosecutions, serious doubts about the reliability of capital convictions, concerns about arbitrariness in death sentencing, and the difficulty of finding reliable methods of execution remain. These issues have allowed death penalty opponents to build their case state by state, appealing to public officials and offering them a different way to frame opposition to capital punishment.
Over the last decade, that strategy has led to judicial or legislative abolition in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, Nebraska (a decision reversed by Tuesday's referendum) and Delaware. Its success can also be seen in the dramatic drop in the number of death sentences handed out across the United States. They have been cut from 315 in 1996 to 49 in 2015. The number of executions also has declined significantly, going from 98 in 1999 to 28 last year.
These changes have occurred because abolitionists have reframed the way many judges, legislatures, and governors think about capital punishment. The focus of political and legal debates has moved from moral and philosophical abstractions toward a careful consideration of the way the death penalty works in practice. Even after the recent election, public officials can continue to oppose the death penalty by questioning whether its day-to-day practices are compatible with central American values, like due process and equal treatment....
While they did not persuade the citizens of California, Nebraska or Oklahoma, opponents of the death penalty have made substantial progress with the American public. A 2015 national survey conducted by the Pew Research Center found that 71% of Americans believed that there is some risk that an innocent person will be put to death and only 26% thought that there are adequate safeguards in place to make sure that does not happen. That same survey found that 52% of respondents agreed that minorities are more likely than whites to be sentenced to death for similar crimes.
Because of these concerns about the risk of executing the innocent and about racial discrimination in capital sentencing, 42% of the public now opposes the death penalty, the highest such opposition has been since 1972. Last week's electoral results are a reminder that the death penalty continues to have powerful populist and symbolic appeal, but it does not foretell a comeback for capital punishment. Abolitionists will remain on the offensive, and America still seems to be on the road to abolition.
Sunday, November 13, 2016
Respond to Election 2016 outcomes by writing a commentary for the Federal Sentencing Reporter
Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce a solicitation from the journal below (and I am eager to encourage regular readers to put together their views ASAP for possible publication):
Seeking Commentaries for Federal Sentencing Reporter Special Issue to provide “Advice for the new Congress and new Administration”
Every election cycle presents a notable opportunity for new discussions and debate over the state and future of the federal criminal justice system, especially when the election comes at the close of a two-term presidency. And after considerable talk before the campaign season of bipartisan agreement over the need for federal sentencing reforms, the 2016 campaign saw the two leading candidates take divergent tacks when discussing crime and punishment. Democratic candidate Hillary Clinton spoke of the need for “end-to-end reform” of the criminal-justice. In sharp contrast, GOP candidate (and now President Elect) Donald Trump stressed the themes of "law and order."
With the election of Donald Trump and with both houses of Congress to be under the control of the same party as the President Elect, the incoming Congress and new Administration could seek to move forward swiftly with criminal justice reforms. But what form might new reforms take? In a short document entitled "Donald Trump's Contract with the American Voter," the President-Elect pledged to work with Congress to establish new mandatory minimum prison terms for certain immigration offenses, to create a task force on violent crime, and to increase funding for federal law enforcement agencies and federal prosecutors. But beyond these few pledges, it remains quite unclear whether or how the new Trump Administration or the incoming Congress might want to make a criminal justice reform priority.
In light of these developments and related uncertainty, the editors of the Federal Sentencing Reporter have decided to create a special Forum opportunity to invite judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, to share "Advice for the new Congress and new Administration." We hope that contributors to this special issue of FSR can help provide both general ideas and specific proposals for how the new Congress and new Administration should approach criminal justice reform issues, especially as they relate to federal sentencing law and policy.
FSR seeks to publish short commentaries — ranging in length from a few paragraphs to a few pages — on any federal crime and punishment topics authored in any reasonable form to provide “Advice for the new Congress and new Administration.” Commentaries could tackle big structural issues (such as whether the time has come to radically change the advisory guideline system), smaller technical issues (such as how to revise statutory mandatory minimum drug sentencing provisions), or any other topic of interest or concern to modern federal sentencing policy and practice.
FSR hopes to publish in its December 2016 and February 2017 issues all proper commentaries submitted before the end of this year. Submissions must be received no later than November 28 for possible publication in the December issue and not later than December 24 for the February issue. Submissions should be sent electronically to sentencinglaw @ gmail.com with a clear indication of the author and the author’s professional affiliation. All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law, policy and practice are encouraged to submit a commentary.
"Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?"
The title of this post is the title of this notable new essay authored by Nora Demleitner. Here is the abstract:
Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.
These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.
"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"
The title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:
The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways. In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration. Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.
As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980. Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases. Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights. For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.
Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment. Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts. For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack. In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.
Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted. Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.
November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)
Saturday, November 12, 2016
"How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence"
The title of this post is the title of this notable article authored by Deborah Denno now available via SSRN. Here is the abstract:
Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society.
This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it. Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong.
This Article examines how courts respond to neuroscience evidence in capital cases when the defense presents it to argue that the defendant’s mental state at the time of the crime was below the given legal requisite due to some neurologic or cognitive deficiency. Relying on data from my “Neuroscience Study” (which consists of all criminal law cases that addressed neuroscience evidence from 1992–2012), I examine thirty-nine capital cases in which the defense attempted to use neuroscience evidence to dismiss or diminish the defendant’s level of intent either at the guilt phase or the penalty phase, along with a corresponding rebuttal or counterargument from the prosecution. I use a range of case examples to show how courts’ differing perspectives on what constitutes mitigating and aggravating evidence suggests that the “double-edged sword” framework is simplistic and, at times, misleading.
This Article concludes that the lack of consistency and guidance among lower mens rea cases seemingly hinders a more effective application of neuroscience evidence in intent determinations. To remedy this problem, this Article endorses the “reasonable jurist” framework, which recognizes the value of case-by-case determinations and provides courts with a more realistic lens through which to assess the great variety of neuroscience factors.
A quick take on the Obama sentencing era and its 2016 ending
As I reflect on the emotions and uncertainty resulting from Donald Trump now being our Prez-Elect, my thoughts keep wandering back to this time eight years ago when Barack Obama had just been elected after campaigning on the slogans hope and change. Due to my intense interest in sentencing reform changes of so many varieties, I was cautiously optimistic that the Obama era might usher in a profound new world order for the operation of federal and state criminal justice systems.
But now I look back and have to conclude that the Obama sentencing era, generally speaking, was filled with way too much hope and not nearly enough change. And it strikes me that for a lot of voters this past week who rejected Democratic candidates, the Obama era for them was perceived to be filled with way too much change and not nearly enough hope.
Friday, November 11, 2016
How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
The question in the title of this post are inspired by today's national holiday, Veterans Day. Here are some general data thoughts/realities as part of an effort to try to answer these questions:
1. According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans. The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities." But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison.
2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans. But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans.
3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000. If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy. (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)
Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans. But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way. After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.
Some very old prior related posts:
- Thinking about sentenced troops on Veterans Day
- How many vets, after serving to secure liberty, are now serving LWOP sentences?
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
- Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Early thoughts on a day to be full of thoughts about the future of the death penalty
As noted in this prior post, I am so very fortunate and pleased and excited that today I will have a chance to participate in this amazing symposium being put on by Northwestern Law's Journal of Criminal Law and Criminology. The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.
Needless to say, all the election result earlier this week surely has impacted what a lot of folks plan to say at this event, and here are three notable new article highlights aspects of the new capital punishment world order:
From BuzzFeed News here, "How Donald Trump Could Revitalize The Death Penalty: Trump could have a serious impact on the death penalty if he wanted to. Here’s how."
From SFGate here, "Suit filed to block death-penalty measure Prop. 66"
From the AP here, "With Death Penalty Back, Nebraska Looks Ahead to Executions"
In a (too tiny) nutshell, I generally do not expect too much to change jurisprudentially or practically about the death penalty in the next few years unless and until (1) states can find a steady supply of lethal injection drugs (or devise effective alternative methods of execution), and/or (2) Prez-Elect Trump and his appointees start trying to make a potent case to all Americans that much greater use of the death penalty is an essential and important ways to legally respond to the uptick in murders nationwide in the last few years.
Thursday, November 10, 2016
Reading closely the main criminal justice elements of "Donald Trump’s Contract with the American Voter"
I just had a chance for the first time to review closely this two-page document entitled "Donald Trump's Contract with the American Voter." I did not read this document whenever it was released during the campaign, but now I see these notable promises in the criminal justice arena from page two of this document (with my emphasis added):
I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:...
End Illegal Immigration Act
Fully-funds the construction of a wall on our southern border with the full understanding that the country of Mexico will be reimbursing the United States for the full cost of such wall; establishes a two-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a five-year mandatory minimum federal prison sentence for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.
Restoring Community Safety Act
Reduces surging crime, drugs and violence by creating a task force on violent crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.
Because I generally think that mandatory minimum sentencing provisions often do more harm than good, I am troubled to see emphasis on such provisions in the first passage I have quoted. At the same time because I generally think out federal criminal justice system should be much more focused on violent crime and much less focused on nonviolent crime, I am actually a bit encouraged to see an particular emphasis on violent crime in the articulation of priorities in the second passage.
Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
The question in the title of this post is prompted by my strong belief that Prez-Elect Trump is very likely to keep his campaign promise to pick a SCOTUS nominee from his list of 21 possibilities released during his campaign. Ed Whelan has this helpful new post over at Bench Memos that sets out all the 21 names and their current positions as well as a reminder that Trump said this list "is definitive and [that he] will choose only from it in picking future justices of the United States Supreme Court."
As a fan and follower of federal sentencing law and policy, there are three names on the Trump lists that jump out to me immediately:
For complicated reasons that I do not think can be adequately and effectively explained in this forum, I am cautiously optimistic that the appointment of any of these gentleman could be a relatively positive development for the future of SCOTUS sentencing jurisprudence. (Critical disclosure: my views here, at least for the two jurists above, are significantly influenced by my own personal and professional interactions. Judge Pryor and I have exchanged emails a few times (both before and since he became a member of the US Sentencing Commission), and Judge Thapar and I have met and spoken more than a few times (and he hired a former student of mine as an intern and also solicited me to write an amicus brief in a fascinating sentencing case a few years ago).)
Sadly, other than this trio, I am unfamiliar with the sentencing views and record of any of the other 18 persons on Prez-Elect Trump's SCOTUS (not-so-)short list. Ergo, I am uncertain about whether to be cautiously optimistic or pessimistic about what any other nomination could mean for the future of SCOTUS sentencing jurisprudence. I am certain, though, that a whole bunch of journalists and lawyers and advocates are now starting the hard work of investigating (and perhaps formally vetting) every person on the Trump SCOTUS list.
I am hopeful that anyone with any relevant sentencing-related information about these folks will share that information in the comments here or via email/links. I suspect Prez-Elect Trump will nominate a replacement for Justice Scalia within his first few days as president, and so I do not think it is too early to start gearing up for what should be an interesting and dynamic confirmation process.
"Revitalizing the Clemency Process"
The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team). Here is the abstract:
St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist. Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system. An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine. But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can. Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings. Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.
We now have reached a point where that taint can be eliminated. There is a consensus that the clemency process can and should be reformed. The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions. The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position. That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.
Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?
The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California. (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:
The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed. This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....
But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t. [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]
There are a couple of other important reform measures that passed. Ironically, both were in states that strengthened the death penalty. California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts. And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors. They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.
As the question in the title of this post is meant to suggest, I do not think it "ironic" that the very different states of California and Oklahoma with very different voters acted in the same way here. Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders). I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.
1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering. High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.
At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders. National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.
2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors. Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").
November 10, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Wednesday, November 9, 2016
"Why Donald Trump’s election won’t doom the criminal justice reform movement"
The title of this post is the headline of this lengthy new Fusion commentary authored by Casey Tolan. The piece covers a lot of ground effectively in the wake of yesterday's election results and I recommend the piece in full. Here are some extended excerpts:
In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”
But Trump’s stunning victory — while scary for many other reasons — isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.
Overall, it was a mixed-bag election night for criminal justice. Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.
The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.
And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.
The president does not actually have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail....
Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.
Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani — or whoever Trump picks — could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election). And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.
Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened. “We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”
With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”
For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.
November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (4)
"Prison stocks are flying on Trump victory"
The title of this post is the headline of this notable new CNBC article, which includes these excerpts:
Private prison stocks soared Wednesday after Republicans won control of Congress and the White House.
Corrections Corporations of America and GEO Group had suffered some of their biggest declines over the last several months. But on Wednesday, both stocks recouped some of those losses. Corrections Corporation gained 43 percent, while GEO climbed more than 21 percent.
In August, the Department of Justice instructed its Bureau of Prisons to begin phasing out the use of private contractors for federal corrections facilities. Both stocks tanked on the news, but analysts called the market reaction overblown, and questioned how feasible it would actually be for the federal government to build new housing for displaced prisoners....
The stocks fell particularly far after presidential candidate Hillary Clinton expressed her support for the moves and her intention to build on them. "I'm glad that we're ending private prisons in the federal system," Clinton had said in her first presidential debate with Donald Trump. "I want to see them ended in the state system. You shouldn't have a profit motivation to fill prison cells with young Americans."
Days after Clinton made her remarks, both stocks posted their worst quarters in more than 15 years. Now that Clinton has lost, and Democrats failed to gain control of Congress, it appears investors are more sanguine about the future of the businesses.
Could "mens rea" federal statutory reform become a priority for the next GOP Congress and for a Trump Administration?
The question in the title of this post is prompted by the fact that nearly all GOP members of Congress who have discussed an interest in federal criminal justice reform, as well as many right-leaning policy advocates and advocacy groups, have urged so-called federal "mens rea" reform. An articulation of these realities finds effective expression in this September 2015 "Legal Memorandum" authored by John Macolm, the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, under the titled "The Pressing Need for Mens Rea Reform." I blogged this document when it was released 14 months ago, and highlight its abstract and "Key Points":
One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws. Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system. Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished. That is something that should concern everyone.
1. Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.
2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist. Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.
3. Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided. If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.
Notably, as I lamented in this post in January 2016, I have long feared that Democratic opposition toward GOP eagerness for mens rea reform was a problematic impediment to any bipartisan federal statutory sentencing getting to Prez Obama's desk before he left the oval office. But the Election 2016 results mean that the next GOP Congress now need not have to worry too much about opposition to mens rea reform from Democratic members of Congress and also probably that such reform will have the support of our next President.
Of course, very few non-lawyers even understand what the term mens rea means, and I am certain that those who voted for Republican federal elected officials did not have mens rea reform in mind when voting. (Indeed, ironically, mens rea reform would generally make it harder to prosecute the kinds of crimes that has led to Hillary Clinton being investigated by the FBI.) Thus, I doubt anyone other than federal criminal lawyers and think-tank types would even notice if mens rea reform is or isn't part of the agenda of the next Congress and Administration. But I hope it is.
Some recent and older related posts:
- "The Pressing Need for Mens Rea Reform"
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
- "How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."
Effective Marshall Project takes on Election 2016 and criminal justice now and in the future ... UPDATE: and another set of views via Crime & Consequences
The folks at The Marshall Project have four new articles that review and assess what this Election cycle says and suggests about the state and fate of criminal justice issues throughout the United States. Here are links to these pieces:
- The States Where Voters Decided to Give Criminal Justice Reform a Try
UPDATE: For another informed and diverse perspective on criminal justice reform stories, I always check daily Crime & Consequences in addition to The Marshall Project. Here are some of the early Election 2016 reaction posts from various folks at C&C:
Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:
1. Popular vote realities in 2012 and 2016
Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579 (total vote = 128.6 million)
Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)
In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.
2. Younger voters in 2016
As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.
As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates. Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.
In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
- Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:
- Florida voters seem poised to legalize medical marijuana via state constitutional amendment
- North Dakota appears poised to pass medical marijuana initiative
- Early Arkansas and Montana results suggesting more winning medical marijuana reforms
- Massachusetts votes to legalize recreational marijuana and Maine might have too
- California and Nevada on path to legalize recreational marijuana, but Arizona not that into it
Eager for thoughts on who President-Elect Donald Trump should or will appoint as to SCOTUS and as Attorney General
I have never been a big fan of conventional wisdom, and the 2016 election results reminds me why. And while I am certain the coming days and weeks will have lots and lots of pundits looking back, I am already eager to look forward by trying to figure out whom President-Elect Donald Trump will be eager to put into the positions that can and will likely have the greatest impact on sentencing law and policy in the coming years. As the title of this post highlights, who President-Elect Trump will select to serve on the Supreme Court and to serve as Attorney General seem to me to be the most important early decisions he will make that could shape the future of sentencing jurisprudence and doctrine.
Notably, at least three persons named by Trump as possible SCOTUS nominees have notable sentencing reform interests or history: Senator Mike Lee, Judge William Pryor, and Judge Amul Thapar. I am not versed on the sentencing work of others' on Trump's SCOTUS nominee lists, but I am looking forward to learning more about whomever he decides to nominate. Given his "law and order" campaign themes and the role played by three "tough on crime" former US Attorneys as close advisers, I am expecting Trump will seek to be drawn to an Attorney General who will echo these kinds of sentiments.
Long story short, as a CNN commentator is saying as I write this, the election of Donald Trump creates a "new world order," and I am already starting to think dynamically about who will be constructing this new world and and how it will approach "law and order."
Sentencing reform's (uncertain?) future after huge election wins for Republicans, the death penalty, marijuana reform and state sentencing reforms
It is now official that Republican have retained control of both houses of Congress, and it seems now a near certainty that Donald Trump will soon officially be our nation's President Elect. What that might mean for the future of federal sentencing reform will be the subject of a lot of future posts. For now, I just want to wrap up the story of dynamic state ballot initiatives in the states by spotlighting that they showcase a pretty consistent national criminal justice reform message for all local, state and national officials.
1. The death penalty still has deep and broad support in traditionally conservative states like Nebraska and Oklahoma, and clearly still has majority support even in a deep blue state like California.
4. Recreational marijuana reform has seemingly significant support in blue states after winning this year in California and Massachusetts and Nevada and probably Maine, but in the red state in Arizona it could not garner a majority this year.
Fascinating mixed criminal justice initiative results developing in California
Though a little under 40% of all precincts have been reported, the early results on all the criminal justice reform ballot initiatives in California reported here indicate this fascinating mixed bag of criminal justice reform developments:
Proposition 57 reforming "Criminal Sentences & Juvenile Crime Proceedings" is winning 64% to 36%
Proposition 62 "Repeal of Death Penalty" is losing 45% to 55%
Proposition 64 enacting "Marijuana Legalization" is winning 56% to 44%
Proposition 66 providing for "Death Penalty Procedure Time Limits" is winning 51.5% to 48.5%
In other words, the largest state in our Union has voted again against repealing its death penalty and seems to be voting for a competing reform intended to speed up the path of condemned murderers from death row to the execution chamber. At the same time, this state has enacted via initiative yet another significant reform to its non-capital sentencing system that seems likely to further reduce the state's modern heavy reliance on incarceration. And the state with a huge population and a "local" economy that is of truly global significance will now be fully turning away from the criminalization of recreational marijuana use by adults.
Nebraska voters resoundingly rejecting its legislature's abolition of state's death penalty
Though the votes are not all in, this official Nebraska election page has enough results and those results are lopsided enough that I feel comfortable concluding that Nebraskans have decided to preserve its death penalty. The votes now in show 60% of voters deciding to repeal the legislation that abolished the death penalty in the state. Together with the similarly strong pro-death penalty vote in Oklahoma, it is certainly clear that folks in the heartland are not eager to turn away from the ultimate punishment.
Tuesday, November 8, 2016
In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win
Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:
State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.
State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.
State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.
"How Do You Vote in Prison and Jail? For the most part, you don’t."
The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results. Here are excerpts:
People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?
Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation. There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.
There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont. Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.
So that’s prisons. Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)
That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....
Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.
Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?
SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:
Broom v. Ohio, No. 16-5580
Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.
I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial. Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:
- Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
- Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
- "Ohio GOP lawmakers: Execution process can be fixed" (Nov 2009)
- Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
- "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
- "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)
Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?
As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal. This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:
A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election. Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....
David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....
Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt. There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....
The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time. Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.
Judge Susan D. Wigenton set sentencing for Feb. 21.
I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility). Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni. Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).
I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years. I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be.
Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.
Prior related post:
- "Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)
Some Election Day headlines for sentencing fans ... (to read while waiting in line to vote?)
I am about to head out to vote, and I have the great fortune (and white privilege?) of a local polling place where there is almost never a line to impede or slow down my voting efforts. (And this year I have the extra excitement of getting to see one of my teenagers serving as a poll worker. I am so very proud of her willingness to go through the local training and get up at 5am this morning in order to help everyone have an easy and smooth experience exercising the franchise.)
I am certain that starting this evening I will be blogging about results of key elections for those interested in sentencing reform (as partially previewed here), though I fear it will not be until Wednesday until we know about all the big initiative votes in California because polls there do not close until 11pm EST. Before that time, though, I am hopeful we might have a sense of the outcomes of the big marijuana reform votes on the East Coast (especially in Florida, Maine and Massachusetts) and also of the death penalty votes in the Heartland (Oklahoma and Nebraska).
In the meantime, I have collected here some headlines and links to stories that provide a kind of Election Day starter. Though I sincerely hope readers do not experience long lines or waits to vote, perhaps these stories can help some pass the time:
- "Voters in California and Nebraska will decide whether they want to keep the death penalty"
Monday, November 7, 2016
"Extreme Prison Sentences: Legal and Normative Consequences"
The title of this post is the title of this intriguing looking new paper authored by Melissa Hamilton now available via SSRN. Here is the abstract:
The American criminal justice system has an obsession with lengthy prison sentences. From theoretical perspectives, harsh penalties may be justified to retributively punish heinous criminals, to incapacitate dangerous people, and to deter potential wrongdoers. But for a penalty to achieve any of these purposes it must still be proportional to the offense and offender. A disproportionately severe sentence is harmful in being unnecessary and tyrannical in nature.
This Article reports on an empirical study of extreme sentences, which is defined to include sentences of imprisonment of at least 200 years. The author compiled an original dataset of extreme sentences issued in the federal sentencing system. Since the year 2000, federal judges sentenced 55 individuals to prison terms ranging from 200 to 1,590 years. At such a length, these sentences may appear irrational as they are beyond any person’s natural lifespan, particularly as the federal system provides no opportunity for parole. Thus, it may be of interest to understand how and why such extraordinary sanctions came to fruition and to confront the consequences thereof in terms of normalizing extreme prison sentences.
The study undertook quantitative and qualitative analyses of a variety of sources related to the cases in the dataset. The sources included statistical databases, case opinions, governmental press releases, and news reports. The study results revealed that the discourses underlying extremely long sentences generally (a) justified them for the theoretical purposes of retribution, incapacitation, and/or deterrence; (b) approved them on proportionality grounds; (c) regarded the penalties as the practical equivalent of life sentences; (d) represented an exclusionist mindset; (e) relied upon dehumanizing caricatures; and (f) presented with cognitive biases, such as anchoring and scaling effects.
In the end, however, the Article still questions whether the extreme nature of these sentences is rational in any circumstance as they represent penalties that no person can possibly complete. And even if a prison term of at least two centuries may be a proper one, the author posits that such a penalty appears disproportionate for multiple cases in the dataset. At least a few of the defendants, for example, were nonviolent, first-time offenders. Further, the federal judiciary’s acceptance of sentences of these extreme lengths has normative consequences that likely will continue to have a ratchet effect in future cases.
Split Fourth Circuit panel concludes Virginia’s geriatric release program insufficient to save juve LWOP sentences from violating Graham
A Fourth Circuit panel today handed down a lengthy split decision today in LeBlanc v. Mathena, No. 15-7151 (4th Cir. Nov. 7, 2016) (available here), concerning the application of the Supreme Court's Eighth Amendment Graham ruling in Virginia. Here is how the majority opinion by Judge Wynn gets started:
Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the Eighth Amendment forbids the sentence of life without parole” for juvenile offenders convicted of nonhomicide offenses. Accordingly, the Supreme Court held that States must provide juvenile nonhomicide offenders sentenced to life imprisonment with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.
Nearly a decade before the Supreme Court decided Graham, Respondent, the Commonwealth of Virginia, sentenced Petitioner Dennis LeBlanc to life imprisonment without parole for a nonhomicide offense he committed at the age of sixteen. In light of Graham, Petitioner sought postconviction relief from his sentence in Virginia state courts. The state courts denied Petitioner relief, holding that Virginia’s geriatric release program — which was adopted more than fifteen years before the Supreme Court decided Graham and will allow Petitioner to seek release beginning at the age of sixty — provides the “meaningful opportunity” for release that Graham requires.
Mindful of the deference we must accord to state court decisions denying state prisoners postconviction relief, we nonetheless conclude that Petitioner’s state court adjudication constituted an unreasonable application of Graham. Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id. Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.
Judge Niemeyer issued a lengthy dissent that gets started this way:
In affirming the grant of Dennis LeBlanc’s habeas petition brought under 28 U.S.C. § 2254, the majority holds that the Virginia Supreme Court concluded unreasonably that Virginia’s geriatric release program provided a meaningful opportunity for release to juveniles and therefore satisfied the requirements of Graham v. Florida, 560 U.S. 48 (2010). Graham forbids sentencing juveniles to life in prison without parole for nonhomicide crimes. In reaching its conclusion, the majority relies simply on its expressed disagreement with the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), and effectively overrules it. The Virginia court’s opinion, however, is demonstrably every bit as reasonable as the majority’s opinion in this case and should be given deference under § 2254(d)(1).
Especially because the "swing" vote on this panel came from a district judge sitting by designation, I think there is a decent chance this case might get further consideration by the Fourth Circuit sitting en banc. I also would expect Virginia to seek Supreme Court review if it does not seek or secure en banc review.
November 7, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Interesting array of distinctive sentencing articles in Louisiana Law Review’s Fall 2016 issue
A helpful reader alerted me to this new symposium issue of the Louisiana Law Review with four distinct articles on four distinct criminal sentencing topics. The publication follows the live symposium earlier this year, reported here, which was titled "Throw Away the Key: Criminal Sentencing Reform in the 21st Century." Here are the four article from that issue:
Restitution and the Excessive Fines Clause by Kevin Bennardo
The Right to Redemption: Juvenile Dispositions and Sentences by Katherine Hunt Federle
Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing by Kenya J.H. Smith
"Global Overview of Sex Offender Registration and Notification Systems"
A helpful reader altered me to this interesting publication with the same title as this post. The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:
Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws. A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.
The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.
The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.
What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws. Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.
As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.
What are the elections that followers of sentencing reform are (or should be) watching especially closely?
On this Election Day eve, I am debating whether I should be putting together some kind of "Sentencing Reformers' 2016 Election Guide." There are some obvious elections that everyone will obviously be watching which obviously will impact the fate of major sentencing reform efforts. Who becomes Prez elect and which party controls the US Senate will, of course, be a focal point for all Election Night coverage, and these representative democracy outcomes will directly influence the direction and shape of future federal statutory sentencing reform developments.
In addition, those who care a lot about the state and fate of capital punishment will be following closely the big repeal/retain votes in California and Nebraska (and perhaps a lower-consequence vote in Oklahoma). And those who care a lot about about the state and fate of marijuana reform will be following closely the big full legalization votes in five states (Arizona, California, Maine, Massachusetts, Nevada) and the medical marijuana votes in four other states (Arkansas, Florida, Montana, North Dakota).
Not to be overlooked among the higher-profile ballot initiatives are (arguably more consequential) state sentencing reform initiatives in California (Prop 57) and Oklahoma (State Questions 780 and 781). And, as detailed via this Governing round-up, there are various other "criminal justice" ballot initiatives in various states dealing with victim rights and gun control and a few other issues that surely can echo through sentencing systems.
In addition to all this action, I suspect there may some (lower-profile?) "sleeper" federal, state or local races in which candidates or issues could have a pretty big impact on sentencing reform. I would be grateful to hear from readers in the comments about any particular races/issues they are following particularly closely with an eye on current and future sentencing realities.
Are there any of the elections mentioned above that readers think are especially important for sentencing reform?
Are there elections I have not flagged that ought to be on the radar screens of sentencing reformers?
UPDATE: Via Twitter, I was alerted to this new article from The Nation which spotlights local Arizona DA up for re-election whose race might be of interest to readers of this blog. The full headline of the article provides a taste of its contents: "This Arizona Prosecutor Is Waging a Strange War on Weed — and That’s Just the Beginning: Bill Montgomery is up for election tomorrow."
Focus on the federal death penalty as capital trial begins for Charleston mass murderer Dylann Roof
Today marks the start in Charleston, South Carolina of the highest-profile federal capital trial since the death sentencing of the Boston Marathon bomber. Here are some local and national stores/headlines providing some context and a sense of what to expect in the courtroom:
Meanwhile, for those unsure what some in the traditional media think about this capital case, here are links to a recent Los Angeles Times editorial and a New York Times op-ed arguing against capital punishment even in this case of mass murder in which there is no doubt about guilt: