Monday, February 8, 2016
Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws
A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want. The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:
A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.
“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them. I don’t see his children at risk.”
Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4. The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.
Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines. Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.
Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors. He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger. “There are troubling issues and we are talking about children,” Gopstein argued.
But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said. Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.
The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases. It was unclear whether he was serious.
Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.
The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.
Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases. For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.
Sunday, February 7, 2016
"Restitution and the Excessive Fines Clause"
The title of this post is the title of this notable new paper authored by Kevin Bennardo now available via SSRN. Here is the abstract:
Restitution is a component of many criminal sentences. There is little agreement, however, upon whether and how the Eighth Amendment of the Constitution limits restitution orders in criminal cases. Courts have long been divided over whether the Excessive Fines Clause applies to restitution orders at all, whether to apply the “grossly disproportional” test to restitution orders or some other causation-based test, and how to measure gross disproportionality in the restitution context.
First, the Excessive Fines Clause of the Eighth Amendment should be read as a limit on restitution orders in criminal cases. The Eighth Amendment applies because these monetary payments are partially punitive. And, although restitution payments are not made to the sovereign, the concept of “fines” for purposes of the Excessive Fines Clause is properly understood to encompass payments to third parties that result from government-initiated action.
Second, the same “grossly disproportional” test that has been applied to criminal fines and forfeitures should apply to restitution orders as well. Indeed, all monetary sanctions should be pooled together for purposes of a single Excessive Fines Clause proportionality analysis. The constitutionally-relevant question should be whether an offender’s total monetary sanction is grossly disproportional to the gravity of the offense. Although causation between the offense conduct and the victim’s loss is generally a statutory requirement of restitution orders, it is not a constitutional one. The causation requirement furthers restitution’s remedial purpose; it is not relevant to the Eighth Amendment’s excessiveness inquiry, which functions to limit the punitive severity of monetary sanctions.
Lastly, the question of gross disproportionality is largely an exercise of judgment that should be left to the judiciary. Some courts have inappropriately wholly relied on analyzing whether the monetary sanction was authorized by the legislature in assessing the constitutionality of the penalty. This approach inappropriately collapses the constitutional inquiry into the statutory one. Although the statutory restitution or fine range may be a useful input in the constitutional analysis, it cannot be the sole component. In the end, the judiciary's independent judgment must be trusted to weigh proportionality and detect unconstitutionally excessive monetary sanctions.
FSR accounting of state of federal sentencing reform efforts at end of 2015
For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries.
In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015. The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:
This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015. In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House. The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.
The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last. The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform. It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.
A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP
BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender. The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:
Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old. Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place. Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.
More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence. Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.
The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder. Over the past decade, the court has taken up several cases addressing juvenile justice issues. The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.
Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences. The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....
Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.” While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.
Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases. During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...
On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller. In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it. As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.
If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question. (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)
February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Saturday, February 6, 2016
"Was there a Ferguson Effect on crime rates in large U.S. cities?"
The question in the title of this post is the title of this notable new research paper authored by a quartet of sociologists and criminologists and available now via ResearchGate. Here is the abstract:
Purpose: There has been widespread speculation that the events surrounding the shooting death of an unarmed young black man by a white police officer in Ferguson, Missouri — and a string of similar incidents across the country — have led to increases in crime in the United States. This study tested for the “Ferguson Effect” on crime rates in large U.S. cities.
Methods: Aggregate and disaggregate monthly Part I criminal offense data were gathered 12 months before and after August 2014 from police department data requests and websites in 81 large U.S. cities. The exogenous shock of Ferguson was examined using a discontinuous growth model to determine if there was a redirection in seasonality-adjusted crime trends in the months following the Ferguson shooting.
Results: No evidence was found to support a systematic post-Ferguson change in overall, violent, and property crime trends; however, the disaggregated analyses revealed that robbery rates, declining before Ferguson, increased in the months after Ferguson. Also, there was much greater variation in crime trends in the post-Ferguson era, and select cities did experience increases in homicide. Overall, any Ferguson Effect is constrained largely to cities with historically high levels of violence, a large composition of black residents, and socioeconomic disadvantages.
Conclusions: The national discourse surrounding the “Ferguson Effect” is long on anecdotes and short on data, leaving criminologists largely on the sidelines of a conversation concerning one of the most prominent contemporary issues in criminal justice. Our findings are largely consistent with longstanding criminological knowledge that changes in crime trends are slow and rarely a product of random shocks.
"Instead of building 'super prisons,' let's build super schools"
The title of this post is the headline of this notable commentary by an Alabama state rep in response to a recent proposal by the state's Governor. Here is how the commentary begins:
During his State of the State Address Tuesday night, Gov. Bentley laid out his four-year plan, which included spending up to $800 million to build four new super prisons. The next day, the governor announced that he wants to transfer $181 million out of the education budget and put it in the general fund budget, which also pays for prisons.
Don't get me wrong. There are some very serious problems with our state prisons. What's happening at the Julia Tutwiler Prison for Women is unacceptable! Changes need to be made, and more prison reform is absolutely needed.
But how can the governor — or any legislators, for that matter — justify spending almost a billion dollars on new accommodations for prisoners while thousands of our children are going to school in run-down facilities that have broken windows and no air conditioning?
Instead of building "super prisons" like what the governor is talking about, how about we build "super schools" instead? Why is the governor willing to invest hundreds-of-millions of dollars in our prison population's future, but wants to cut hundreds-of-millions from our children's future?
Among other points, this commentary highlights the reality that, for states with fixed and limited budgets, any and all extra taxpayer investments in cells can often require a reduction in taxpayer investment in classrooms.
Friday, February 5, 2016
Lots of end-of-the-week notable capital punishment stories
A busy day of teaching and other work activies has prevented me from posting about a number of interesting death penalty stories and commentaries I noticed in the media recently. Here are headlines and links to serve as a kind of end-of-week round-up:
Thursday, February 4, 2016
"Obey All Laws and Be Good: Probation and the Meaning of Recidivism"
The title of this post is the title of this timely new article authored by Fiona Doherty and now available via SSRN. Here is the abstract:
Probation is the most commonly imposed criminal sentence in the United States, with nearly four million adults currently under supervision. Yet the law of probation has not been the focus of sustained research or analysis. This Article examines the standard conditions of probation in the sixteen jurisdictions that use probation most expansively. A detailed analysis of these conditions is important, because the extent of the state’s authority to control and punish probationers depends on the substance of the conditions imposed.
Based on the results of my analysis, I argue that the standard conditions of probation, which make a wide variety of noncriminal conduct punishable with criminal sanctions, construct a definition of recidivism that contributes to overcriminalization. At the same time, probationary systems concentrate adjudicative and legislative power in probation officers, often to the detriment of the socially disadvantaged. Although probation is frequently invoked as a potential solution to the problem of overincarceration, I argue that it instead should be analyzed as part of the continuum of excessive penal control.
Detailing shrinking number of states still denying federal benefits to former drug felons
The Marshall Project has this intriguing new piece on the modern reality and reform of collateral consequences headlined "Six States Where Felons Can’t Get Food Stamps: Few holdouts remain, as drug-war-era bans on benefits are lifted." Here are the details:
For almost two decades, Alabama residents convicted of a drug-related felony were barred for life from receiving food stamps or welfare payments. Starting this month, the ban will officially be lifted.
Alabama is not the only state that is backing away from the ban, which was established in 1996 under President Bill Clinton’s welfare reform law and blocks only drug offenders from receiving assistance, not any other felons.
Eighteen states have completely abandoned the federal prohibition on drug offenders receiving Supplemental Nutrition Assistance Program (SNAP) benefits, or food stamps. Twenty-six other states have partly eased those restrictions, often by providing the benefits only if the recipient complies with parole, does not commit a second offense, enrolls in treatment, etc. At least three more states — Georgia, Nebraska, and Indiana — are now considering similar reforms. Only six states continue to fully enforce the War on Drugs-era ban. ...
States have been somewhat less willing to lift the ban on drug offenders receiving Temporary Assistance to Needy Families (TANF), otherwise known as welfare. Thirteen states continue to fully prohibit anyone with a drug-related conviction from getting welfare benefits, and 23 others maintain a partial ban.
Unlike food stamps, which are paid for in full by the federal government, welfare is partly funded by the states. That means it is significantly more expensive for states to expand access to welfare, which may be part of the reason this ban has been slower to fall.
Wednesday, February 3, 2016
DOJ announces appointment of new Acting Pardon Attorney
This DOJ press release reports that the "Justice Department announced today that Robert A. Zauzmer will become the new Acting Pardon Attorney effective immediately." Here is more about this important new person in an important new DOJ position:
Zauzmer, the Chief of Appeals in the U.S. Attorney’s Office of the Eastern District of Pennsylvania, has been a key player in the department’s implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions.
“Bob’s long-standing commitment to criminal justice reform and his knack for devising and implementing the department’s sentencing reduction policies made him a natural choice to serve as Pardon Attorney,” said Deputy Attorney General Sally Q. Yates. “Bob also shares my unwavering dedication to the president’s clemency initiative. Given his experience and dedication, I am confident that Bob will hit the ground running.”
“As someone who has been part of the criminal justice system for more than 25 years, I have long been troubled by the imposition of disproportionately lengthy sentences, even as long as life imprisonment, that were imposed on low-level drug offenders on the basis of laws and policies that have since been changed,” said Zauzmer. “I have dedicated much of the past decade to assisting in the efforts to right some of those unfairly long sentences, and it is my profound honor to aid the president in using his clemency power to continue to restore the sense of proportionality and fairness that is at the heart of our justice system.”
As part of his efforts on behalf of the department, Zauzmer has testified multiple times before the U.S. Sentencing Commission on sentencing guideline issues, including the retroactive application of reductions in drug sentences. He also trained federal prosecutors nationwide on how to apply retroactivity in a way that provides relief to all eligible inmates in the most efficient manner possible. From 2012 to 2014, Zauzmer served as a member of the Attorney General’s Advisory Committee (AGAC), working closely with Attorney General Loretta E. Lynch and Deputy Attorney General Yates at a time that they served as chair and vice-chair, respectively, of the AGAC....
In December 2013, President Obama directed the department to prioritize applications for clemency from inmates who were sentenced under outdated policies and would have received a lesser sentence under current policies and laws. Since the clemency initiative was announced in April 2014, the president has granted 187 commutations, more than the last five presidents combined.
UPDATE: This new NPR piece, headlined "New Pardon Chief In Obama Justice Department Inherits A Huge Backlog," has some interesting quotes from the new Acting Pardon Attorney:
Robert Zauzmer, 55, has worked since 1990 at the U.S. attorney's office in the Eastern District of Pennsylvania. Justice Department leaders said Zauzmer represented a "natural choice" for the pardon job, in part because of his experience training prosecutors all over the country in how to evaluate prisoners' requests for early release. "There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me," Zauzmer told NPR in an interview this week.
"Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice," he added. "They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it."
His first task? Making sure that thousands of prisoner petitions are reviewed and worthy candidates are forwarded to the White House for action before the end of the Obama presidency, whether the applications come from trained lawyers or from inmates themselves. "We're going to consider every petition," he said. Zauzmer declined to offer a deadline but said stacks of petitions are "not going to be left on my table."
"I need to make sure that every system is in place that's necessary to review every case and make sure everybody gets a fair shake," Zauzmer said. "There's a lot to do, but we have an excellent staff there, and I'm going to give it everything I have."...
But in the interview, the new acting pardon attorney cast some doubt on the idea of a mass clemency. "So I don't think we will ever get to a point where we will say, let's just take this basket of people and do mass clemency," Zauzmer said. "We will look at these cases individually to make sure that we're not creating an undue risk to public safety, and that requires an individual assessment."
And Zauzmer pointed out that he is quite familiar with those case-by-case looks. He said the White House had already shortened the prison terms of six inmates from his district in Pennsylvania, including the case of David Padilla, who had been serving life behind bars. "He was a classic example of someone who committed crimes, did bad things, admits it, has served almost 20 years in prison and should not be serving a life sentence," he said. "A life sentence does not possibly match the kind of criminal conduct that he was involved in."
"American Exceptionalism in Probation Supervision"
The title of this post is the title of this notable new data brief published by Robina Institute of Criminal Law and Criminal Justice. The core product is this interesting graphic (which is really hard to see here, but is very worth checking out). Here is some of the Robina Institute's text that explains some of the graphic's data details:
It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision. Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly. Nearly 4 million adults were under probation supervision across America at year-end 2013. In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.
These findings lead to many important questions of law and policy. Most states should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for “early termination” of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good. Community supervision can make offenders’ “reentry” into the law-abiding community more difficult than it needs to be, such as when meetings with probation officers interfere with work responsibilities, or supervision and program fees block probationers’ ability to support themselves and their families.
Concerns of this kind should be carefully evaluated by lawmakers in every state. If some uses of probation are counterproductive to the reentry process, or outright “criminogenic,” it should be a high priority everywhere to discontinue them. The financial expense and opportunity costs of “mass probation” should also be assessed nationwide. High probation supervision rates cost American taxpayers a great deal of money, and not just in the funding of probation agencies. National data suggest that a large share of all prison admissions come from probation revocations — a substantial number of which are for “technical” violations of sentence conditions rather than new criminal conduct. Far from being an “alternative” to incarceration, probation has been a “feeder” institution or a “conduit” to our prisons and jails. In this respect, misguided probation policy has almost certainly been a major contributor to America’s excesses in prison policy. The problems of mass incarceration and mass probation are intimately linked, and they must be tackled together.
Return of GOP jedis trying to keep sentencing reform efforts going in Congress
Last week via this post titled "GOP empire striking back against federal sentencing reform efforts in Congress," I noted this Politico article highlighting that a "cadre of conservative Republicans" were starting to line up against congressional statutory sentencing reform efforts. The title of this post continues the galactic metaphor as a way to view these notable new press accounts of significant GOP voices trying to keep federal sentencing reform efforts moving forward:
From the New York Times here, "Senator John Cornyn Aims to Sway Fellow Republicans on Criminal Justice"
From Politico here, "Republicans press for criminal justice overhaul"
From BuzzFeed News here, "Koch Continues To Push Criminal Justice Bill As Momentum Fades On Hill"
Because lots of folks on both the left and right sometimes seem to think that the Koch brothers can use their massive wealth to "buy" legal reform, I will here highlight the first part of the BuzzFeed piece:
The momentum for criminal justice legislation is slowing down on Capitol Hill, but hundreds of miles away, Charles Koch — one of its biggest supporters — continued to aggressively make the case for it to pass this year, even as the billionaire becomes the face of one of the sticking points. “The issue we’ve been working hard on is criminal justice reform, so if somebody makes one mistake, non-violent, it starts with this question: Do you have right to run your own life as long as you don’t violate the rights of others and you’re not bothering anybody?” Koch said to donors on Sunday at the winter meeting of the political network affiliated with the industrialist brothers, which drew about 500 attendees.
Koch’s comments on the issue were part of an hour-long presentation on what he calls “Framework for Free Society,” which the billionaire believes will put the country back on the right track. He views changes to the criminal justice system as a crucial component of the framework. “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” he said.
In addition to Koch himself advocating for looser sentencing laws, attendees also received a closed-door briefing on the issue Sunday morning, according to a schedule provided to donors. BuzzFeed News was one of six news organizations to accept an invitation to cover parts of the network’s meeting after agreeing to certain ground rules. The largest-ever gathering of the Koch brothers’ political network this past weekend came as the path forward for criminal justice legislation — a high priority for the network’s donors — becomes increasingly uncertain in a presidential election year.
"Do sex offenders deserve a scarlet letter on their passport?"
The question in the title of this post is the headline of this Los Angeles Times editorial. Here is how it starts:
After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute. Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.
They appear to have found their target: sex offenders. The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit. Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.
This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk. He should veto it.
Sex offenses against minors are particularly horrendous crimes. But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.
But wait, some supporters argue, people who commit sex crimes against children are a special case. As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere. Their front doors should be marked to warn trick-or-treaters. They should be banned from park benches.
This blatantly false argument thrives on ignorance. There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety. Some may target minors. But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category. Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.
Prior related post:
Tuesday, February 2, 2016
Post-Hurst hydra develops new heads in Delaware as all capital cases get halted
In this post last month not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various courts as judges try to make sense of just what Hurst must mean for past, present and future capital cases. Now, as reported in this local article, headlined "All Delaware executions, capital murder trials halted," a new head for this litigation hydra emerged yesterday. Here are the basic details:
All pending capital murder trials and executions have been halted until the Delaware Supreme Court determines the constitutionality of the state's death penalty law. The temporary stay, issued by President Judge Jan R. Jurden on Monday, is expected to impact at least four death penalty cases that were scheduled to go to trial in the next 120 days. Likewise, a spokesperson for the Department of Correction said Monday that all executions are also on hold, even though none were scheduled for the coming months.
"I think it is a smart decision," said Delaware's Chief Defender Brendan O'Neill. "It makes sense to stay the cases until we get the Supreme Court's ruling on whether our death penalty statute is constitutional." The stay will give the Delaware Supreme Court time to consider five questions that have arisen in light of a recent U.S. Supreme Court ruling for Florida.
Last month, the U.S. Supreme Court struck down Florida's death penalty system, saying it gives too much power to judges, instead of juries. In that case, a man was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola and was sentenced to death by a judge. Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. Judges in Delaware have not been using that power.
The top U.S. court's recent ruling left prosecutors, defense attorneys and judges in Delaware with many questions about how to proceed in the state's approximately two dozen death penalty cases and with the 14 men on death row. In light of this, Superior Court Judge Paul Wallace solicited questions from Attorney General Matt Denn's office and O'Neill's office that they would like the Delaware Supreme Court to consider. The highest state court agreed last week to address the questions and set a timeline of mid-April for all briefs to be submitted.
The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer. Police have said the shooting occurred during a drug deal gone awry....
Jurden wrote in the administrative directive Monday that the certified questions are directly relevant to the pending capital murder trials. "Specifically, the determination will control the procedure to be applied in all such cases," she wrote. "A temporary stay of the pending trials, penalty hearings, and any applications asking this court to declare Delaware's capital sentencing scheme unconstitutional is warranted to ensure the application of the law consistent with the Supreme Court's determination of the certified questions." Jurden went on to say that temporary stays have previously been entered, such as in 2003 and 1992, when questions about the validity of the procedures were being considered by the Delaware Supreme Court.
The ensuing court battle is not the only challenge to the state's death penalty law. A bill to abolish the death penalty failed 23-16 in the House of Representatives on Thursday, but some lawmakers are vowing to give it a second chance this spring.
The administrative directive referenced in this article is available at this link.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
- Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
"The Irrationality of Natural Life Sentences"
The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey. Here are excerpts:
[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life. On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.
At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed. Both facts bump up against natural life sentences. A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release. Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.
Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?...
Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.
If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.
February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges
A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here). Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:
Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.). Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).
We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent. Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart. Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.
In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:
The form as a whole seems designed to encourage judges to sentence within the range. A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory. The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit. The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences. Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.
February 2, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Do latest ugly gun crime numbers in Chicago disprove the "more guns, less crime" hypothesis?
The question in the title of this post is what first jumped to my mind as I reviewed this USA Today report on the ugly crime spike in the Windy City recorded in January. Here are the basics:
The nation's third largest city recorded 51 homicides in January, the highest toll for the month since at least 2000. Gang conflicts and retaliatory violence drove the "unacceptable" increase in homicides, the police department said in a statement. But the rise in violence also notably comes as the Chicago Police Department faces increased scrutiny following the court-ordered release of a police video showing a white police officer fatally shooting a black teenager 16 times, and as the department implements changes in how it monitors street stops by officers.
Chicago routinely records more homicides annually than any other American city, but the grim January violence toll marks a shocking spike in violence in a city that recorded 29 murders for the month of January last year and 20 murders for the month in 2014. In addition to the jump in killings, police department said that it recorded 241 shooting incidents for the month, more than double the 119 incidents recorded last January.
The rise in violence comes after the Chicago Police Department reported 468 murders in 2015, a 12.5% increase from the year before. There were also 2,900 shootings, 13% more than the year prior, according to police department records.
In recent weeks, the police department pushed back against the notion that the rise in homicides could be due to cops becoming less aggressive due to the negative attention the department has received in the aftermath of the release of the police video showing the shooting of Laquan McDonald. The city saw several weeks of largely peaceful protests after the release of the video. The U.S. Justice Department has launched a civil rights investigation of the city.
Mayor Rahm Emanuel, who faced fierce backlash in the city's African-American community over his handling of the McDonald case, fired his police superintendent, Garry McCarthy, after the video's release. Interim Superintendent John Escalante expressed frustration earlier this month as the homicide toll climbed, but said it was due mainly to gang activity. He also said he was concerned about social media fueling gang disputes, with fatal incidents starting as a war of words on the Internet....
St. Louis saw a dramatic increase in the number homicides following the August 2014 police shooting death of Michael Brown in nearby Ferguson, which spurred months of angry protests. And Baltimore saw a spike in homicides following the death of Freddie Gray in Baltimore in April, an incident that sparked unrest in the Charm City. In both Baltimore and St. Louis, the rise in violent crime began to increase prior to the high-profile incidents and accelerated afterward.
The department says it has seen a decrease in investigative stops by cops on the streets after new rules went into effect Jan. 1 requiring the police department to bolster the monitoring of stops and protective pat downs known as "stop-and-frisk." The police department entered an agreement with the American Civil Liberties Union to record contact cards for all street stops after the organization criticized the the city's police for disproportionately targeting minorities for questioning and searches. In the past, police officers were required only to fill out cards for stops that didn't result in an arrest. The new contact cards also require police officers to offer greater detail about the stops than they have in the past.
This Chicago Sun-Times article, headlined "Street cops say 'ACLU effect' drives spike in gun violence," provides one account of what might be an importance cause of these latest ugly crime developments. But the title of this post is intended to flag the possibility that an increase in gun violence might also be attributed in part to an increase of gun availability, both legal and illegal, that seems to necessarily flow from the Supreme Court's recent Second Amendment work and continued controversies over gun control. For a host of reasons, I have long wished that there was a sound basis to believe (or at least hope) that increased gun availability could actually reduce crime. This Chicago news would seem to undermine such a hypothesis.
"International Megan's Law" heading now to Prez Obama's desk
As reported in this dispatch from The Hill, the US House of Representatives "easily cleared legislation on Monday to expand efforts within the Department of Homeland Security to track registered child sex offenders’ travel plans as a means of combatting human trafficking." Here is more about a bill often called an international Megans Law:
The measure, passed by voice vote, would codify the Department of Homeland Security’s (DHS) “Operation Angel Watch” program that determines whether countries should be notified of sex offenders’ travel. Under the legislation, sex offenders would be required to report to law enforcement when they plan to travel internationally. Sex offenders who fail to comply would face up to ten years in prison.
In addition, the State Department will be obligated to create a unique identifier for child sex offenders’ passports. Lawmakers said the provisions would help prevent sex offenders from trying to break the law undetected. “Child predators thrive on secrecy,” said Rep. Chris Smith (R-N.J.), the bill’s author.
The House previously passed a version of the bill last January, and the Senate later approved it with amendments by unanimous consent in December. Congress last year approved legislation to create a fund for victims of sex trafficking and give prioritize states for federal grants if they establish “safe harbor” laws for child victims of trafficking.
Last month here at The Volokh Conspirary, David Post expressed concerns about this legislation. The title of the post reveals the basic nature of his concerns: "The yellow star, the scarlet letter, and ‘International Megan’s Law’." The Marshall Project has this new piece echoing similar themes under the headline "Congress Acts to Mark Passports of Sex Offenders: Target of legislation is sex-traffickers; critics call it a ‘scarlet letter’."
Monday, February 1, 2016
"Accommodating Justice: Victim Impact Statements in the Sentencing Process"
The title of this post is the title of a forthcoming book by Tracey Booth, the introduction to which can be downloaded here via SSRN. Here is the SSRN abstract:
Prominent criminologist, David Garland, has argued that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide”.
A victim impact statement (VIS) is a highly nuanced and individual narrative that can operate as both an informational device in the sentencing process and an expressive mechanism for crime victims. From the law perspective, VISs provide the court with details of harm caused by the offence and the consequences of the offending in order to further purposes of sentencing. As an expressive mechanism, VISs offer victims the opportunity and space to express their feelings, tell their personal story of the aftermath of crime, and be heard by the court, the offender, and the wider community.
Though a well-established feature of contemporary sentencing hearings (at least in superior courts) VISs remain controversial in common law jurisdictions. The ‘non-legal’ nature of VISs has generated uncertainty in relation to the functioning of the sentencing hearing and concerns have been raised that VISs are: inconsistent with established legal values, detrimental to the offender’s entitlement to a fair hearing, detrimental to victims’ wellbeing, and harmful to the integrity of the legal proceedings.
Accommodating Justice: victim impact statements in the sentencing process explores complex territory where VISs, the law and legal institutions intersect with a focus on the requirements of fairness, most particularly in the courtroom. And it does so from multiple perspectives: courts, offenders and victims. The book draws from a range of theoretical and doctrinal sources as well as empirical studies from Australia, Canada, the United States and the United Kingdom. An ethnographic study of the performance of VISs in homicide sentencing hearings in the NSW Supreme Court woven through most chapters provides an innovative and evidence-based approach to the issues.
Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints
As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:
Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled. A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau. The case had been argued before the court earlier this month.
In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.
In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient. "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."
But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation. Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions. "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."
The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.
Notable new parallel studies on comparable execution patterns in two notable states
Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:
There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing. For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions." These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.
Sunday, January 31, 2016
Highlighting the highlights of the Colson Task Force report on improving federal justce system
As reported in this recent post, last week the Charles Colson Task Force on Federal Corrections issued numerous recommendations to reform the federal criminal justice system in a big report titled Transforming Prisons, Restoring Lives. The helpful folks at Vice subsequently published this helpful overview of the report in an article headlined "A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to Prison." Here are excerpts:
Chief among the recommendations of the nine person, bipartisan Charles Colson Task Force on Federal Corrections is sending fewer low-level drug offenders to federal prison, and sentencing offenders to far fewer years behind bars, which would reverse two of the changes that have driven the federal prison population to grow by 700 percent since 1980.
But the task force also dug into the minutiae of how the prison system is operated, including how it evaluates the success of its programs, the recidivism rate, and how it uses its resources. In their final report, members suggest that the prisons should actually devote more resources to addiction treatment, cognitive behavioral therapy, classes, and faith programs, and incentivize participation by offering offenders reducing time from their sentences and a "second look" at their cases by a federal judge after they've served certain number of years.
"If their behavior is good in the program, they've taken part in programs, they can have their sentence looked at again. It's an incentive to have people behave well and participate in programs that are evidence-based to improve behavior," said Laurie Robinson, a criminal justice professor and former Assistant Attorney General who served on the task force....
Robinson described her experience working with the task force as "terrific." Despite 30 years working in the criminal justice system, she said she learned both from the diverse viewpoints of her colleagues and the federal prisoners she met on site visits. "Some were in their late 60s or 70s, and at least one of those individuals was in very bad health and said he had applied several times for compassionate release," she said. "And it just made you think: Why are we spending so much in the way of taxpayer dollars to keep people behind bars?"...
Robinson and her colleagues were meeting with senior staff at the White House ... to brief them on the report and point out which actions could be taken without a Congressional vote or legislation. "There are things in there that the director of the BOP could do tomorrow, she said, noting that there are also steps the DOJ and president could take that focus on management, resource allocation, and best practices. Others of them I think might not happen necessarily quickly but maybe are things that will get into the public conversation that will have to happen at a later time," she said....
Going forward, the report says, sentences should be individualized, policy should emphasize public safety, data should guide policies, and the costs should be more carefully considered. Most importantly, the report says, the lawmakers who receive the recommendations "must capitalize on this rare moment in time" of political will and public awareness to make effective change.
Prior related post:
Notable analysis of many capital defendants in Florida condemned to death by split juries
The Tampa Bay Times has this new detailed analysis of the history and impact of the Sunshine State's willingness to send persons to death row based on split jury recommendations. The article is headlined "Only in Florida: How the nation’s lowest bar for the death penalty has shaped death row," and here is how it gets started:
Florida has more than 170 people on death row today who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, a Tampa Bay Times analysis has found.
Unburdened by the need to reach a unanimous decision, Florida juries typically don’t. Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.
No other state allows juries to recommend death by a 7-5 vote. Of the 32 states that have the death penalty, 29 require a unanimous vote of 12. Alabama requires 10. Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.
This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.
The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials. The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.
The Times found that prisoners who were sentenced to death based on non-unanimous jury recommendations were far more likely to have their cases overturned on direct appeal, or to be ultimately acquitted.
Florida leads the nation in death row exonerations. Of the 20 people who have been exonerated and for whom sentencing information is available, 15 were sent to death row by a divided jury. Three others were cases in which judges imposed the death penalty over a jury’s recommendation of life in prison.
Saturday, January 30, 2016
Judge Jack Weinstein disregards severe federal child porn guidelines again
A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein. The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:
A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.
U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers. "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."
His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh. The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."
The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea. "I prayed to God and took my chances," the 53-year-old father of five said. "I feel very remorseful. It's something that will never happen again."
But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.
In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.
But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.
The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."
Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....
Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.
That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."
"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."
I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.
Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines). But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.
UPDATE: A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading: Download US - v- RV weinstein sentencing opinion
January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (22)
You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing
The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says." Here are the basics (with my emphasis added):
Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana. Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.
But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients. He told police that "he was operating his business as a source of income," Distel said.
Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW. Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants. Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.
He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court.... Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing. He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.
Schmidt is free on bond. Kent County prosecutors will drop a second charge of manufacturing marijuana.
His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives. After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party. He had spent 16 years on a Grand Rapids City Commission on the West Side of town.
This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?
But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge. His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students. But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.
Thoughts, dear readers?
Friday, January 29, 2016
Forces in Oklahoma talking about criminal justice reform via ballot initiative ... prompting question "is direct democracy the best way to approach criminal justice reform?"
This local article, headlined "Coalition wants to give voters a choice on criminal justice reform in Oklahoma," highlights that a number of prominent advocates for criminal justice reform in the Sooner State want to soon have citizens voting directly on these reforms. Here are the basics:
A politically diverse group of state officials, policy advocates, and members of the business community came together Wednesday to announce they were joining forces to stop a problem the state can no longer ignore: Oklahoma's high incarceration rates. “We're running a factory to create future felons,” said Bancfirst Corp. Chairman Gene Rainbolt. “It's ridiculous.”
Addressing the media at the state Capitol, Rainbolt was among about one dozen other prominent Oklahomans who said they had formed a coalition, known as Oklahomans for Criminal Justice Reform, and they plan to take the issue straight to the voters through two ballot initiatives.
“We need to correct corrections, and if we're going to call it the Department of Corrections we need to do some correcting. If not now, when? We are at 119 percent capacity,” said Rep. Pam Peterson, R-Tulsa, referencing the state's swelling prison population. More than 28,000 inmates — the highest prison population the state has ever seen — sit behind bars in Oklahoma today.
If successful, the coalition will place two ballot measures before voters, said former state House Speaker Kris Steele. The first will lower several nonviolent felonies that would warrant prison time, such as simple drug possession and writing fraudulent checks, to misdemeanors that would call for community-based treatment....
The second initiative would task the Office of Management and Enterprise Services with tracking the number of offenders who would be diverted to treatment rather than prison and calculate the savings. Those funds would be held in a lock box, to be distributed to county governments for substance abuse treatment, mental health care, and offender supervision. This money could be going to schools, health care, and “the other building blocks for a good state,” said David Blatt, president of the Oklahoma Policy Institute....
In order to get both questions on a state ballot, the coalition will have to gather almost 68,000 signatures for each initiative. Several bills have been filed for the upcoming Legislative session that will address many of the same solutions proposed in the ballot measures, said Rep. Peterson, and their hope is to complement those efforts.
Peterson noted Steele's work years before with the Justice Reinvestment Initiative, a sweeping criminal justice reform bill passed by the state Legislature in 2011. JRI would have moved Oklahoma's justice system in a similar direction, but it was never fully funded and eventually stymied. Peterson said reform of this level doesn't happen overnight. “Speaker Steele really started in 2011, but it's taken this long to get to this point,” she said when asked if the political climate is right for sentencing reform. “So, it takes a while.”
I find this story of taking reform efforts directly to the voters in Oklahoma especially in the wake of California Gov Jerry Brown earlier this week (as blogged here) proposing a state ballot initiative to expand parole and make other reforms that I would usually expect to be pursued via traditional legislative action. And, of course, as often highlighted in posts at my other blog, Marijuana Law, Policy and Reform, ballot initiatives have been the primary driver of major marijuana reforms in the states over the last decade.
I tend to be a huge fan of so-called "direct democracy" for a wide number of legal process reasons, but these latest developments in California and now Oklahoma leave me to wonder a lot if criminal justice reform by plebiscite ought to be seen as a truly welcome development.
Lots of notable new sentencing stories via How Appealing
I still think of Howard Bashman and his How Appealing blog as the granddaddy or godfather in the world of law blogging. And mornings when a lot of the newest contents at How Appealing includes links to interesting sentencing stories, I am sometimes tempted in this space to just provide links to Howard's links. Today I am giving in to this temptation via links here and here.
Thursday, January 28, 2016
"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"
The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:
Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.
Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
Diving deep into latest data showing significant uptick in homicides in 2015
The folks at Wonkblog have this effective new posting, headlined "More people were murdered last year than in 2014, and no one’s sure why," which provides lots of interesting data on the significant increase in homicides in major cities in 2015. It also highlights why simple explanations for this recent homicide increase (or prior decreases) are hard to come by. I recommend the full piece, and here are excerpts:
Wonkblog analysis of preliminary crime data found that about 770 more people were killed in major cities last year than the year before, the worst annual change since 1990.
The killings increased as some law enforcement officials and conservative commentators were warning that violent crime was on the rise amid a climate of hostility toward police. They said protests and intense scrutiny of officers who used lethal force had caused officers to become disengaged from their jobs, making streets more dangerous. Some have called it the "Ferguson effect," after the St. Louis suburb in which Michael Brown Jr. was shot and killed by a police officer in 2014.
A closer look at the figures, however, suggests no single explanation for the increases and reveals no clear pattern among those cities that experienced the most horrific violence. Several cities that recorded the largest increases in homicides -- Nashville and Washington, D.C., for instance -- had no widely publicized, racially charged killings by police. Many other big cities recorded modest increases or even declines in the number of homicides, with no deviation from the pattern of recent years....
Public safety has been improving for two decades, and lethal violence in large cities is still rare by historical standards. Twice as many people were killed in those 50 cities in 1991 as in 2015. "You certainly wouldn't want to say the sky is falling," said Darrel Stephens, executive director of the Major Cities Chiefs Association.
Nonetheless, last year's interruption in the decline in homicides has experts concerned. They say it's too early to know what caused the change, or whether it will endure. It's not clear if there is a Ferguson effect, or if the homicides are a result of the heroin epidemic, reduced police department budgets, a decline in the number of convicts behind bars or other factors entirely. "There's no national pattern," said Franklin Zimring, a criminologist at the University of California at Berkeley....
Stephens, of the Major Cities Chiefs Association, ticked off a list of other theories for the increase in violence. Perhaps relaxed gun laws in some states are making firearms more widely available, and more arguments are being settled with lethal weapons as a result. Stephens also noted that authorities are locking up fewer people in prison, and perhaps more dangerous criminals were on the street last year.
Federal data, however, suggest that the reduction in the incarcerated population over the past several years is mainly a consequence of decreasing admissions, rather than a change in the number of prisoners released annually, which has also declined. In 2014, just 582,000 prisoners were let go from state and federal prisons, compared with 683,000 in 2008....
Additionally, both those explanations are complicated by the absence of any regional pattern in the data. There were more killings in Nashville, but the total in Memphis declined by 1 percent. The number of homicides increased 25 percent in Houston, but decreased 9 percent in San Antonio. There were seven fewer homicides last year than in 2014 in Fresno, Calif., a decline of 15 percent. Meanwhile, up Highway 99 in Sacramento, there were 43 killings last year, an increase of 54 percent. "Everything is basically anecdotal," Stephens said. "There's not a clear national picture that I've been able to discern of what might be contributing to the changes that we’ve seen in so many cities."
Bill Otis has some sharp commentary about these data and how Wonkblog reports it in this post at Crime & Consequences titled "The National Murder Crisis, Worse Than We Thought." In that post, Bill quickly mentions "that the increase in murder in 2015 was more than 25 times the total number of killers executed that year," but he disappointingly does not follow-up by noting that the one major city with the biggest decline in homicides in 2015 was also the city with the most headline-grabbing 2015 capital punishment trial: Boston. (I am generally disinclined to suggest there is a close relationship between the administration of the death penalty and homicide rates, but I still find notable that the dozen cities with the largest homicide increases in 2015 are all in states without the death penalty or with a capital punishment system not functioning properly.)
New poll shows that, even among younger voters, support for the death penalty remains solid
YouGov has conducted some recent polling concerning death penalty perspectives that included a number of interesting questions and interesting demographic data. This brief summary of the poll results with a focus on age divisions includes this accounting of some of the poll results:
Most Americans still favor the death penalty, but a quarter of young Americans would refuse to even consider the death penalty if they were on a jury.....
YouGov's latest research shows that most Americans still favor the death penalty for people who have been convicted of murder. Support is highest among Republicans (71%) and over-65s (67%). Under-30s are the only group where there is not majority support for the death penalty, with 45% people aged 18 to 29 saying that they favor the death penalty and 35% saying that they are opposed.
Despite the fact that only 58% of Americans actively support the death penalty 73% say that, if they were on the jury for a murder trial, they would consider all sentencing options, including the death penalty. 18% of Americans say that, regardless of their jury duty, they would never consider the death penalty. Younger Americans are the most likely to say that they could never consider condemning someone to death, with a quarter of under-30s (24%) stating that they'd never consider the death penalty.
I am not at all surprised that younger people, who tend to be more liberal than older people on a wide range of issues, are generally less supportive of capital punishment than their elders. Indeed, as the title of this post suggests, I am somewhat surprised that only 1 of 3 millennials voice general opposition to the death penalty and tht only 1 of 4 would be unable to return a capital verdict if on a jury.
California Gov Jerry Brown proposes state ballot initiative to expand parole and make other reforms
As reported in this Los Angeles Times article, headlined "Gov. Brown to seek November ballot initiative to relax mandatory prison sentences," the chief executive of the largest state in our Union is asking voters to give certain executives and judges more power to reduce state sentences after their imposition. Here are the basic details:
Almost four decades after he signed a law mandating strict sentences for the most serious crimes, Gov. Jerry Brown on Wednesday moved to ease its effect, proposing inmates convicted of nonviolent offenses be given a chance at early release. “Let's take the basic structure of our criminal law and say, when you've served fully the primary sentence, you can be considered for parole,” Brown said in announcing a November ballot initiative to streamline the rules — one he estimated could affect thousands of current inmates.
Rather than change sentencing policy, the proposal would allow corrections officials to more easily award credits toward early release based on an inmate's good behavior, efforts to rehabilitate or participation in prison education programs. “It's well-balanced,” Brown said. “It's thoughtful.”
The effort is largely in response to the lingering effects of a 2009 federal order for California to reduce its prison population, Brown said. But he made clear that it also is meant to improve a criminal justice system that offers too few chances at rehabilitation. “By allowing parole consideration if they do good things,” the governor said of some inmates, “they will then have an incentive … to show those who will be judging whether or not they're ready to go back into society.”
Brown had been hinting for months that he was considering a key change in criminal justice policy, and consulted with a number of academics and inmate advocates on how to proceed. He was joined Wednesday by a handful of prominent law enforcement and religious leaders. While it was unclear whether they were ready to fully embrace each detail of the measure, they praised Brown's focus on weeding out those serving time for nonviolent offenses. “I think this will effectively open bed space for those who richly deserve to be there,” Los Angeles Police Chief Charlie Beck said.
The initiative also would authorize the state parole board to consider early release for nonviolent inmates who complete a full sentence for their primary offense and it would require a judge to decide whether felons as young as 14 should be tried in juvenile or adult court. That final element of the initiative would undo a system approved by voters in 2000 that handed that power to prosecutors.
Once the measure is given a formal title and summary by the attorney general's office, Brown and his political team will need to gather more than 585,000 valid voter signatures to qualify it for the Nov. 8 statewide ballot. The governor likely has the needed resources: Campaign funds left over from his 2014 reelection bid and previous successful ballot measures total some $24 million....
Patrick McGrath, district attorney of Yuba County, said Brown's plan — by offering more pathways to parole — also may send the wrong message to crime victims who believe their perpetrators received a certain punishment. “Now, down the line, they're told 10 year [sentences] are not really 10 years,” he said. “I think this is very, very corrosive to the faith that the public has ultimately in the criminal justice system.” Loyola Law professor Laurie Levenson, a former federal prosecutor, said the proposal would make a judge's sentence only a starting point. “People could be released from prison years earlier based on what the parole board wants to do,” she said....
Of particular interest will be how Brown shapes the narrative of the political campaign in support of his parole initiative. The fall statewide ballot already is expected to be one of the longest in more than a decade, which will mean voters are deluged with a flood of advertisements, mailers and messages. The ballot also likely will feature other high-profile public safety debates, including a gun violence initiative promoted by Lt. Gov. Gavin Newsom and perhaps dueling initiatives to either eliminate or strengthen California's death penalty.
Prof David Ball, who has researched and written a lot about California sentencing realities, provides a deeper dive into what all this could really mean in this Reality-Based Community post. Here is how this post starts:
Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot. This is potentially huge news — if nothing else, it may signal that the political calculation on crime could be changing — but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.
The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.” Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus). More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements. I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.
"Judicial Power to Regulate Plea Bargaining"
The title of this post is the title of this new article by Darryl Brown available via SSRN. Here is the abstract:
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.
This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.
Wednesday, January 27, 2016
Florida trial judge refuses to allow capital case to proceed in wake of SCOTUS Hurst ruling
A helpful reader altered me to this notable local article reporting on a notable local ruling concerning the administration of the death penalty in Florida in the wake of the Supreme Court's ruling in Hurst earlier this month. Here are the basic details:
Days after the Supreme Court struck down the way Florida sentences people to die, a Pinellas County circuit judge has ruled that the death penalty cannot be pursued in a first-degree murder case scheduled for trial next month.
In an order filed Friday, judge Michael Andrews rejected prosecutors' notice that they intend to seek the death penalty in the case of a Pinellas Park father, Steven Dykes, accused of fatally shaking and striking his 3-month-old daughter in February of last year. "This court concludes that there currently exists no death penalty in the State of Florida in that there is no procedure in place," Andrews wrote.
The order is the first of its kind in the state following the Hurst vs. Florida decision on Jan. 12, said Pinellas-Pasco public defender Bob Dillinger. In an 8-1 opinion, the Supreme Court found Florida's death penalty procedures unconstitutional because juries play only an advisory role in recommending life or death. Judges make the ultimate decision after giving "great weight" to jurors' recommendations....
Dillinger, whose office is representing Dykes, said he agreed with Andrews' ruling. "What the judge has done is absolutely correct," Dillinger said, adding Andrews is "right on point."
Prosecutors could file an appeal in the case. Another hearing is scheduled on Feb. 16, court records show, with the trial slated to begin Feb. 29. Chief Assistant State Attorney Bruce Bartlett said his office "respectfully" disagrees with judge Andrews, adding that the Hurst decision is not final yet. That will happen after the state asks for a rehearing. Bartlett also said the Legislature still has to create new sentencing guidelines in response to the court's decision.
"They issue an opinion and they don't issue any guidelines on how to fix it, and what to do next," Bartlett said of the Hurst opinion. "It's just a dilemma that faces us because the question is how exactly do you fix it? And they didn't really lay out how they thought it should be fixed, so it kind of lends you to, you know, potentially all kinds of challenges."
Lawmakers have previously said that they are making fixes to the death penalty sentencing system a priority this session. "It's not the Supreme Court's job to lay out the procedural guidelines," said Charles Rose, a Stetson University law professor and the director of the Center for Excellence in Advocacy. "That's an issue for every legislature in every state to deal with independently."
The fate of other murder cases remains in flux until new sentencing guidelines are signed into law, said St. Petersburg criminal defense lawyer Marc Pelletier. "Until the Legislature does its part," he said, "we're still going to be in a situation where everything's unclear."...
[L]aw experts across the state agreed with Andrews' order. "The judge has it absolutely right," said Teresa Reid, a University of Florida Levin College of Law professor and assistant director of the Criminal Justice Center. "You need to have a statute in place regarding sentencing, and we don't have that right now."
She said that the judge's responsibility is to make sure the trial is fair and is conducted under law. "It seems to me the appropriate thing to do is wait," she said. "We can't proceed when we don't have the procedure in place."
Rose, the Stetson law professor, said the decision "makes perfect sense." "Judge Andrews should be commended for doing what the law requires," he said. "It's not only sound, it's courageous because he's the first to step out on the ledge on this issue."
Rose predicted that judges across the state would and should follow suit. "My expectation is that there won't be any new death penalty cases tried," he said.
Prior related posts on Hurst and its aftermath:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
- Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
New York Times editorial highlights "Mr. Obama’s Pardon Problem"
Today's New York Times includes this notable editorial about the Obama Administration's recent clemency efforts and the need to revamp the entire way in which federal clemency has been approached in modern times. Here is how it begins:
The sudden resignation of the federal pardon attorney, Deborah Leff, an Obama appointee, is the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken.
The pardon attorney’s office, which operates out of the Justice Department, is responsible for reviewing thousands of petitions for pardons and sentence commutations and for making recommendations for clemency to the president. The president’s power to grant mercy in these cases is nearly unlimited, but for most of his time in office, Mr. Obama, like his recent predecessors, has exercised this power only rarely.
Since 2014, Mr. Obama has focused more attention on this issue. To overhaul the notoriously backlogged pardon office, he announced new standards encouraging tens of thousands of federal prisoners to request reductions of their inordinately long drug sentences. And he hired Ms. Leff to replace Ronald Rodgers, whose incompetent tenure included a finding by the Justice Department’s inspector general that in 2008 he hid information from President George W. Bush in recommending the denial of a clemency petition.
Ms. Leff’s appointment was a promising sign that the dysfunctional pardon process would be repaired. But her tenure didn’t last long. On Jan. 15, barely one year after she was formally appointed, she abruptly announced she would step down at the end of this month, saying only that the work of the office should “move ahead expeditiously and expand.”
As she leaves, more than 10,000 clemency petitions are waiting for review. While the pardon office, which has 10 lawyers, has remained virtually the same size it was 20 years ago, the number of petitions has increased almost sevenfold. The department recently announced plans to hire 16 new lawyers, but this would still be far below the number needed to process the backlog.
The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict. The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions. As one former pardon attorney put it, the prosecutors are “determinedly and irreconcilably hostile” to clemency.
"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"
The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:
For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building. Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system. This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control. The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.
These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem. One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied. Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....
When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal. A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.
Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations. In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state. That failing opens the door to prosecutorial abuse. Nonetheless, the Department of Justice is raising concerns about the proposed legislation. Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!
What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one. It does not undo any criminal provision that already has a prescribed state of mind. Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides. And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes. But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
What should we expect after Montgomery from states that had resisted Miller retroactivity?
The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?". Here are excerpts:
[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”
At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.
From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”
In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...
Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...
As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.
Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”
It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.
It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.
Prior related post on Montgomery:
- SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
- Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
Maine Gov calls for return of death penalty to state for drug dealers and others
This notable recent local article, headlined "Maine should have death penalty for drug dealers, LePage says," reports on some notable recent comments by the chief executive in the Pine Tree state. Here is how the piece starts:
Gov. Paul LePage came out Tuesday in support of reinstating capital punishment in Maine. After starting his day with an apparent joking reference to using the guillotine to stage public executions of drug traffickers, he ended it by saying he believes in the death penalty for drug traffickers, criminals who invade homes and sexually assault the residents, and people convicted of murder.
“What we ought to do is bring the guillotine back,” LePage said during a morning interview on WVOM radio in Bangor. “We could have public executions.” The Governor’s Office said the remark was just a joke to illustrate his support for tougher penalties for drug crimes.
On Tuesday night, LePage was asked whether he supported the death penalty, specifically using the guillotine, during a town hall meeting at Husson University in Bangor broadcast by WVII-TV. “I talk about people dying (from drug overdoses) every day, but no one wants to hear that,” LePage told the audience. “When I talk about the death penalty everyone wants to protect the drug traffickers. I want to protect the people of Maine.”
The death penalty was abolished in Maine by the Legislature in 1887. His comments about the guillotine, made just a few weeks after he made national headlines with a remark about drug traffickers coming to Maine and impregnating a young white girl before they leave the state, were picked up by several national media outlets, including CNN and The Washington Post.
“The only time Maine makes the national news is when the governor says something crazy like this,” said Democratic House Majority Leader Jeff McCabe of Skowhegan. McCabe said such remarks produce a “spectacle,” but do little to solve the issue of ending the drug epidemic.
Tuesday, January 26, 2016
"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"
The title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections. Here are excerpts from the press release (which includes a link to the report):
Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....
“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”
Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable.
"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...
In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.
Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.
In more specific terms, the Task Force recommends that:
- Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
- Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
- The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.
Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."
January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)
What lessons are to be learned from California's recent experiences with sentencing reform?
The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California." As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences. But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.
I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?". In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.
The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems. The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.
In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system. For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act. Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals). Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations. I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.
Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges. But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.
"Why we must rethink solitary confinement"
The title of this post is the headline of this new Washington Post commentary authored by the President of the United States Barack Obama. Here are excerpts from the piece, which concludes with a pitch for broader sentencing reforms:
Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time. Today, it’s increasingly overused ... with heartbreaking results — which is why my administration is taking steps to address this problem.
There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses. As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.
Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones. Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.
The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance. Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society. Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.
As president, my most important job is to keep the American people safe. And since I took office, overall crime rates have decreased by more than 15 percent. In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society. How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity....
The Justice Department has completed its review [on the use of solitary], and I am adopting its recommendations to reform the federal prison system. These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells. These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems. And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.
Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform. Every year, we spend $80 billion to keep 2.2 million people incarcerated. Many criminals belong behind bars. But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences. That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities. And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.
In America, we believe in redemption. We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.
Monday, January 25, 2016
Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty. Here is the article's discussion of the matter:
The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty. The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.
The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder. In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court did not give any statement supporting or dissenting from its decision to reject the case.
Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year. Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment.... The court appears to be waiting for the right case to weigh in. The case that was declined on Monday is Walter v. Pennsylvania.
I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence. But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here).
I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client. But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.
Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative
The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:
- States Modify Sentencing Laws Through Justice Reinvestment
The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States." Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document. And the document has this overview discussion at the outset:
Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations. Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.
Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.
In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline. At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms.
The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.
Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?
The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence. It was prompted in part by the first post-Montgomery e-mail I received: it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."
For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases. But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.
Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely). Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences. But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same. The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.
Prior related post on Montgomery:
SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review." This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.
Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules. In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.
GOP empire striking back against federal sentencing reform efforts in Congress
This new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees. Here is the first part of the article:
Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.
GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.
“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”
Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?
Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.
Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.
Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”
But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.
Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”
The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.
But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.
January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)
Sunday, January 24, 2016
Lots of notable new year marijuana reform developments via Marijuana Law, Policy and Reform
It has been some time since I highlighted here developments in the marijuana reform space, and these recent posts from Marijuana Law, Policy & Reform highlight just some of the reasons why 2016 is already full of marijuana reform stories worth keeping an eye on:
Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"
The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut. But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing. I recommend this commentary in full, and here are excerpts:
In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.
He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness. But after a falling-out with the head of the gang, he turned over a stash house to the police and fled the state. When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.
Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them. So which man was I sentencing? The murderer or the remorseful cooperator?
The prosecutor rewarded his cooperation by filing a socalled 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced. Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....
In the years that followed, I often wondered whether his remorse was strong enough to overcome his past. In 2012, I had the chance to find out. While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby. I wanted to know whether he had become a better citizen or a better criminal. So I asked a prison staffer if I could meet with him in private.
That the warden felt no need to post a guard was my first clue that he had changed for the better. He was working in his first real job at the prison industries factory and had been promoted to supervisor. He showed me recommendations from prison employees for good jobs on the outside. He brought a folder full of certificates he had earned for attending classes. He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.
The meeting made me proud of his accomplishments, but sad that I had not been more confident in him. He still had several years left on his sentence, but it was clear that he had served enough time. After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early. But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money. So he had to stay in prison, at an annual cost of $30,000 to taxpayers.
The tragedy of mass incarceration has recently focused much attention on the need to reform three-strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to reevaluate the sentences they’ve imposed. It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble. But this doesn’t incentivize prisoners to take advantage of work or study opportunities.
Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.
This “second-look review” should be available only to prisoners who are supported by their wardens. To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two-thirds of a mandatory minimum sentence).
Factors in support of an early release should include more than just clean disciplinary records in prison. Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....
I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s. In that system, a judge who believed that a defendant should spend three years locked up would impose a nineyear sentence because parole was likely to be granted after he served one-third of it. But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded. In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....
A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.
UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."
January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)
Saturday, January 23, 2016
New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines
As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:
The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights. The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.
Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests. The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole. But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.
Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests. Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....
A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders. The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.
But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions. The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."
Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes. "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently." Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.
The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation. "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.
But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities." If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."
The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.
Friday, January 22, 2016
"Incarceration Incentives in the Decarceration Era"
The title of this post is the title of this notable new paper by Avlana Eisenberg now available via SSRN. Here is the abstract:
After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.
This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.
Over dissent of Justice Breyer, Alabama goes forward with its first execution in years
As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:
Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.
Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore. He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....
After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned." Brooks did not appear to struggle during the administration of the drugs. His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered. Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.
Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter. She said she hoped Brooks had "made peace with God." Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....
Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin.... The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.
Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used. Her partially clothed body had been found under her bed and she had been beaten with a barbell.
Brooks was one of 187 inmates on Alabama Death Row. Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.
The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.
This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016). See Harris v. Alabama, 513 U. S. 504 (1995). I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.
JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.
Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.” Ala. Code §13A–5–47(e) (2006). For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari. Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995). Florida’s scheme is unconstitutional. See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2). I respectfully dissent.