Tuesday, September 29, 2015

New papers looking closely (and differently) at offender-based sentencing considerations

I just noticed via SSRN these two new papers that take very different approaches to considering offender-based factors at sentencing:

September 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Long-awaited bipartisan federal criminal justice reform bill to emerge from Senate this week

A helpful reader alerted me to this notable new NPR story headlined "Bipartisan Criminal-Justice Overhaul Proposal Expected As Soon As Thursday."  Here are the details: 

A bipartisan group of senators on the Judiciary Committee is preparing to unveil a criminal-justice overhaul proposal as early as Thursday, two sources familiar with the deal told NPR.  The plan follows months of behind-the-scenes work by the staffs of Sen. Charles Grassley, the Iowa Republican who chairs the committee, and several other lawmakers representing both political parties.

Senior members of the Obama administration, including the second-in-command at the Justice Department, also have been nudging senators on the sentencing plan, viewing the proposal as one of the capstones of a legacy on criminal-justice issues for this president. Barack Obama famously became the first sitting president to visit a prison in July.

An unusual left-right coalition formed earlier this year to drive action in Congress and in state houses across the country. The Coalition for Public Safety, which includes Koch Industries, the American Civil Liberties Union and others, is said to support the Senate plan, as well, a third source said.

The proposal will not go as far as some reform advocates may like, the sources say. For instance, the plan would create some tough new mandatory minimum sentences, after pressing from Grassley. It stitches together proposals that would allow inmates to earn credits to leave prison early if they complete educational and treatment programs and pose a relatively low risk to public safety along with language that would give judges some more discretion when sentencing non-violent offenders....

Despite the optimism among advocates and lawmakers, it's unclear whether the full Senate has the time to act before the presidential election intensifies. In the House, meanwhile, Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., are pressing their own legislation, known as the SAFE Justice Act. The two leaders of the House Judiciary Committee, Chairman Bob Goodlatte, R-Va., and John Conyers, D-Mich., are writing their own bills, staff members said.

I am giddy with anticipation to see the specifics of this bill and I am cautiously hopeful that all the time spent working through the details will greatly increase the likelihood that a bill actually makes it through the Senate and perhaps all the way to the desk of Prez Obama.  As I have long said in this space and others, hopeful visions of "the best" possible reform should not stand in the way of any "good" reform that has a real chance of becoming law.  And since just about any reform emerging from a bipartisan deal is likely to have good elements, I am extra hopeful that this news means we getting ever closer to an improvement of existing federal sentencing law and policy.

September 29, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"

The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA.  (This silly hashtag is explained in this prior post.)  Here is an excerpt:

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.  The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor.  The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed.  The jury’s recommendation need not be unanimous.  But Florida law also requires the judge to independently weigh aggravating and mitigating factors.  The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.

September 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Heroin, Murder, and the New Front in the War on Drugs"

DownloadThe title of this post is the headline of this lengthy and effective new Vice article.  Here are excerpts:

It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....

But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....

So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....

So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.

The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.

The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...

In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.

Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."

Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...

State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.

In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....

State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.

Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.

In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....

In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."

Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.

September 29, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, September 28, 2015

A busy (and diverse) week for execution plans and capital concerns

Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution.  Here are the basics: 

Tuesday, September 29Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.)  The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.

Wednesday, September 30Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross.  He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss.  (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.)  The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.

Thursday, Oct 1Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.

For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.

September 28, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?

The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices.  Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus."  I recommend reading Rory's post in full, and here is just a taste (with links from original):

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

 Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.   All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7...

2. Kansas v. Carr and Carr (Question 2) — October 7...

3. Montgomery v. Louisiana  — October 13...

4. Hurst v. Florida  — October 13...

5. Foster v. Chatman (Warden)  — November 2... 

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.

September 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

FBI releases national crime data reporting 2014 continued historic crime declines

If there was a close causal inverse relationship between crime and nationwide sentencing and prison reforms, one might have reasonably expected crime rates to have started moving up in recent years.  After all, at the federal level there have been dramatic reforms over the last decade ranging from (1) the Supreme Court's Booker ruling making the guidelines advisory and various other rulings restricting in the reach of other mandatory sentencing provisions, (2) the US Sentencing Commission repeatedly reducing the severity of the sentencing guidelines for crack offenses and other drugs and other offenses, and (3) Congress enacting the Fair Sentencing Act.  During the same period, many states north and south, east and west (including California and Texas, the two states with the largest prison populations), have reformed sentencing laws and prison policies in various ways.  

But, as this new press release from the FBI reports, the "estimated number of violent crimes in the nation decreased 0.2 percent in 2014 when compared with 2013 data, according to FBI figures released today. Property crimes decreased by 4.3 percent, marking the 12th straight year the collective estimates for these offenses declined."  Here is more of the good crime news via the FBI:

The 2014 statistics show the estimated rate of violent crime was 365.5 offenses per 100,000 inhabitants, and the property crime rate was 2,596.1 offenses per 100,000 inhabitants. The violent crime rate declined 1.0 percent compared to the 2013 rate, and the property crime rate declined 5.0 percent. These and additional data are presented in the 2014 edition of the FBI’s annual report Crime in the United States. This publication, which is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program, also includes limited federal crime reporting and human trafficking data.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and non-negligent manslaughter, rape, robbery, and aggravated assault as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.... The program also collects arrest data for the offenses listed above plus 20 offenses that include all other crimes except traffic violations....

A total of 18,498 city, county, state, university and college, tribal, and federal agencies participated in the UCR Program in 2014. A high-level summary of the statistics reported by these agencies, which are included in Crime in the United States, 2014, follows:

  • In 2014, there were an estimated 1,165,383 violent crimes. Murder and non-negligent manslaughter decreased 0.5 percent and robbery decreased 5.6 percent when compared with estimates from 2013. Rape (legacy definition) and aggravated assault, however, increased 2.4 percent and 2.0 percent, respectively.

  • Nationwide, there were an estimated 8,277,829 property crimes. The estimated numbers of each of the property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 10.5 percent, larceny-thefts declined 2.7 percent, and motor vehicle thefts were down 1.5 percent.

September 28, 2015 in National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

092715-wpvi-pope-bishop-prison-3-IMGThis local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

September 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1)

"The Real Roots of ’70s Drug Laws"

The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner.  Here are excerpts:

The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice.  But many more still die at the hands of black neighbors instead of the police.  Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.

That’s because some consider talk of black­-on-­black violence a distraction.  This is a natural outgrowth of the view that the over­-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white­-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement.  But this is too convenient a narrative.  It erases the crucial role that African-­Americans themselves played in the development of the current criminal justice system.

Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities.  It is, in part, the unintended consequence of African-­Americans’ own hard­fought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.

The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives.  During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods.  After the Harlem riots of 1964 (which erupted following the shooting of a 15-­year-­old black male by a white cop), polls showed that many African­-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....

In 1969, the Manhattan branch of the N.A.A.C.P. issued an anti­crime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.

Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three­-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people.  Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...

Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change.  But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects.  Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half­-century of social and economic decline.  But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.

But long­term strategies can’t provide immediate relief from the daily horrors of urban crime.  In the short run, we need the police.  We need aggressive law enforcement methods that do not harass or brutalize the innocent.  Ultimately, though, we can’t eliminate the propensity to over­police and over­imprison unless we curb the disorder and chaos that threaten and destroy urban black lives.  As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 27, 2015

Could crime be significantly reduce if marijuana tax revenues were all devoted to public safety?

The question in the title of this post is prompted in part by this new local article out of Colorado headlined "Aurora's Smoking New Budget: City puts pot, public safety resources in play for funding 2016." Here are snippets:

For 2016, the City of Aurora will be adding a new line item to its budget: marijuana. City officials project Aurora will make $2.7 million in 2015 based on 18 retail stores and 5 cultivation facilities slated to be up and running by the end of this year....

City officials project that all 24 stores allowed under Aurora’s recreational marijuana ordinance will be open by next year. City officials said they expect to make $5.4 million in 2016 based on 24 stores and 10 cultivation operations being open....

The 2016 proposed budget for the general fund is $305.7 million, up 5 percent from the 2015 budget of $291 million. The 2016 proposed budget calls for big increases in Aurora’s public safety spending, in part by adding eight police officers for administrative duties and to support field operations. It also calls for seven more fire medics.

I remain hopeful that the repeal of marijuana prohibition in the 21st century, like the repeal of alcohol prohibition in the 20th century, will directly improve public safety by reducing the crimes and violence often associated with black markets in illegal comnmodities. But this local article highlights how marijuana reform, by generating new tax revenues for various jurisdictions, might provide an additional boost to public safety through new resources that can be devoted to proven strategies to reduce criminal activities.

For those interested in marijuana reform topics beyond taxes and public safety, here are some recent posts of note from Marijuana Law, Policy and Reform:

September 27, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE.  A partial preview is available here via YouTube, where this summary of the show also apprears: 

VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].

In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.

The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.

It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.

"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.

In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.

America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.

"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."

The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Saturday, September 26, 2015

"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"

The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:

In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.

This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials.  In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves.  The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.

In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility.  In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.

“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments.  “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”

Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.

States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT.  While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring."  One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.

Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...

As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth.  SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.

Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking?  Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...

The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”

In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it.  For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.”  However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.

“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...

Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”

September 26, 2015 in Criminal Sentences Alternatives, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (5)

Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs

The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states.   This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:

The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.

Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.

The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”

On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”

“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...

The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”

States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.

September 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Friday, September 25, 2015

Depressing new 2005 released-prisoner recidivism data from BJS (with lots of spin possibiities)

I just received notice of this notable new Bureau of Justice Statistics report titled "Multistate Criminal History Patterns of Prisoners Released in 30 States."  Though the BJS report and this BJS press release and this BJS summary are primarily focused on state prisoners released in 2005 who were thereafter arrested in another state, the biggest big-picture message is that for the BJS cohort of roughly 400,000 studied state prisoners released in 2005, nearly 80% were rearrested within the next five years. I cannot help but be depressed and saddened that only about one in five persons released from state prisons in 2005 was able to avoid significant contact with the criminal justice system over the subsequent five years.

Unsurprisingly, Bill Otis and other supporters and advocates of modern American incarceration levels have generally stressed these disconcerting recidivism data to assert crime is certain to increase if we enact reforms to significantly reduce our prison populations and let more folks out of prison sooner. But it bears remembering that these 2005 released prisoners served their time in state prisons and were released when the national prison population was continuing to grow and limited state resources were generally being devoted toward sending more people to prison and spending less money trying to keep people out of prison (or to aid reentry when prisoners were being released). These data thus also suggest what many reform-advocating criminologists have long said: the life disruptions and other impact of a prison term (especially when followed by poor reentry efforts) is itself criminogenic and thus serves to increase the likelihood an offender will commit crimes once released.

However one thinks about these new BJS data, it is depressingly obvious that the experience of prison for those prisoners released in 2005 seems to have done a very poor job of encouraging past offenders from becoming repeat offenders. I am cautiously hopeful that an array of prison and reentry reforms enacted by many states over the last decade will result in a much lower recidivism rate for state prisoners now being released in 2015. But only time (and lots of careful data analysis) will tell.

September 25, 2015 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

How might House speaker John Boehner's resignation announcement impact prospects for federal sentencing reform?

The question in the title of this post was my first reaction to this remarkable and unexpected news via Politico

Speaker John Boehner, who rose from bartender's son to the most powerful man in Congress, will retire at the end of October, ending a tumultuous five-year tenure atop the House of Representatives.

Boehner, 65, planned to leave Congress at the end of 2014, one of his aides said Friday morning, but returned because of the unexpected defeat of Eric Cantor.

"The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution," the Boehner aide said. "He is proud of what this majority has accomplished, and his speakership, but for the good of the Republican Conference and the institution, he will resign the Speakership and his seat in Congress, effective October 30."...

Boehner came into power on the power of the 2010 tea party wave, but it was that movement that gave him the most problems. Boehner's tenure will be remembered for his internal political battles, but also his complicated relationship with President Barack Obama. He and Obama tried — but repeatedly failed — to cut a deal on a massive fiscal agreement. But Boehner has had some significant victories, including the free-trade deal that Congress passed this year, and changes to entitlement systems....

Boehner's decision, relayed in a closed Republican meeting Friday morning, will set off one of the most intense leadership scrambles in modern Congressional GOP politics. Second in line is House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to serve as the next speaker. But there is serious unrest in the House Republican ranks, as a small clutch of conservatives have continuously clashed with more establishment Republican types. But it is unclear if any of these figures can win a leadership election.

Of course, the easy answer to the hard question in the title of this post is "it depends." As regular readers know, the younger, more conservative and libertarian-leaning members of Congress within the GOP have generally been more supportive of federal sentencing reform than older establishment GOP officials. Thus, I think the prospects for federal sentencing reform could grow a bit brighter with new blood in the speaker seat.

Then again, any power struggle for leadership positions in the House is almost sure to take time and attention away from other legislative duties.  And diverted attention likely means any existing and future federal sentencing reform bills will have a hard time getting to and through a full vote in the House (and perhaps also the Senate).

September 25, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Notable reactions and commentary after Pope Francis calls again for death penalty abolition

Pope Francis' comments to Congress about his support for the abolition of the death penalty (basics here) has, unsurprisingly, generated lots of buzz from various quarters.  Here are some headlines and links to some notable press pieces:

September 25, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3)

Duchess of Cambridge creates surprising Princess prison diaries in UK

Kate-Middleton-Prison-VisitAs reported in this article from across the pond, headlined "Kate Middleton meets killers on secret visit to high security women's jail," the world's most famous princess made a notable field trip today. Here are the details:

The Duchess of Cambridge has been behind bars today meeting inmates in a women's prison. Kate visited HMP Send in Woking, Surrey to learn how it is helping some of its 282 inmates overcome drug and alcohol addiction to rebuild their lives.

Arriving this morning the royal mum spent 90 minutes inside the high security prison where many are serving life sentences for murder. HMP Send's notable prisoners have included road rage killer Tracie Andrews who served 14 years for murdering her fiancee in December 1996 and the Duchess of York's former dresser Jane Andrews who also spent 14 years in prison for murdering her boyfriend in 2000.

Dressed smartly and showing off her new-look fringe, Kate, 33, was greeted by the governor before meeting prisoners hearing their stories of addiction and crime.  She also met ex-inmates and heard how the programme helped them turn their lives around.

Kensington Palace said in a statement:  “The visit reflects the Duchess's interest in learning how organisations support people living with substance misuse issues, and the impact of addiction within the wider family network.  “As Patron of addiction charity, Action on Addiction, she is aware that addictions lie at the heart of so many social issues and the destructive role that substance misuse plays in vulnerable people's and communities' lives.”

Kate was viewing the work carried out by the Rehabilitation of Addicted Prisoners Trust (RAPt) which operates in HMP Send and 25 other prisons across the country.  Their treatment programme at HMP Send is the only one of its kind for women in Britain.  It is tailored to support female prisoners with addiction who have often experienced deep trauma, focusing on building healthy relationships with partners, children and other family members after the often traumatic and damaging impact of addiction and crime.

September 25, 2015 in Prisons and prisoners, Race, Class, and Gender, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, September 24, 2015

Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing

This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:

Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.

Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.

Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.

Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.

The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”

The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.

The referenced appellate court certification opinion is available at this link, and it begins this way:

We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.

September 24, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections | Permalink | Comments (3)

Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)

AP_pope_congress_10_mm_150924_31x13_1600I have finished watching the Pope's speech to a joint session of Congress, and these passages from the full text of the speech should be of special interest to sentencing fans (with my emphasis added at end):

Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions.  On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities.  Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation.  To respond in a way which is always humane, just and fraternal.  We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: "Do unto others as you would have them do unto you" (Mt 7:12).

This Rule points us in a clear direction.  Let us treat others with the same passion and compassion with which we want to be treated.  Let us seek for others the same possibilities which we seek for ourselves.  Let us help others to grow, as we would like to be helped ourselves.  In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities.  The yardstick we use for others will be the yardstick which time will use for us.  The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty.  I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty.  Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

These passages will surely be the focal point for those eager to advocate for the complete abolition of the death penalty, but the language of hope and rehabilitation never being excluded from "just and necessary punishment" is also significant as a criticism of sentences of life without the possibility of parole.

A few prior related posts:

September 24, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

First Circuit panel reverses stat max drug sentence based on co-defendant disparity

A panel of the First Circuit handed down a lengthy and significant sentncing opinion yesterday in US v. Reyes-Santiago, No. 12-2372 (1st Cir. Sept. 23, 2015) (available here). Here is how the majority opinion begins:

Appellant Jorge Reyes-Santiago ("Reyes") was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico.  Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the chieftain of the enterprise.  Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government's alleged breach of his plea agreement, the sentencing court's alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants.  Reyes also claims the district court erred in ordering a 24-month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.

We find merit in the disparity argument.  Ultimately, in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant #9 in the indictment, and for the conspiracy's kingpin, Defendant #1.  Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants' criminal conduct and other individual circumstances.  In this case, after reviewing Presentence Investigation Reports ("PSRs") and sentencing transcripts for the leaders in the conspiracy, we conclude that the rationale offered by the district court for the substantial disparity between Reyes's sentence and the sentences of others above him in the conspiracy's hierarchy is unsupported by the record.  We therefore must remand this case to the district court for reconsideration of Reyes's sentence.

September 24, 2015 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?

The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported."  Here is the full context:

Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.

Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.

According to Pignolet’s report, Scalia said that “he ‘wouldn’t be surprised’ if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.”  Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.

The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.

After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.

Prior related posts:

September 24, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

"Johnson v. United States and the Future of the Void-for-Vagueness Doctrine"

The title of this post is the title of this notable new paper by Carissa Byrne Hessick now available on SSRN. Here is the abstract:

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague.  The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences.  The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes.  What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways.  Those elaborations ought to make vagueness challenges easier to win in the future.

This Commentary examines the implications of Johnson.  It also briefly discusses Justice Thomas’s concurrence.  Justice Thomas refused to join the majority opinion, instead opting to decide the case in Johnson’s favor on statutory construction grounds. In addition to his statutory construction analysis, Justice Thomas questioned the constitutional basis of the void-for-vagueness doctrine.  Justice Thomas’s approach to the vagueness doctrine, if adopted by other members of the Court, could eviscerate the notice function of the doctrine.

September 24, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (8)

Wednesday, September 23, 2015

Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"

BernieAs noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:  

The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.

There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.

No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.

Here's why:

For-profit prisons harm minorities....

For-profit prisons abuse prisoners....

For-profit prisons victimize immigrants....

For-profit prisons profit from abuse and mistreatment....

Prison industry money is corrupting the political process....

For-profit prisons are influencing prison policy ......

... and immigration policy....

For-profit companies exploit prison families....

Young people are being mistreated and exploited....

I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.

My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.

It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.

I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary.  Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation.  Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.

Some prior related posts:

September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Investigating how elected judiciary may impact capital punishment's administration

USA-DEATHPENALTYReuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty.  The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....

State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....

In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

September 23, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Pope Francis and the case for American criminal justice reform"

The title of this post is the headline of this notable new FoxNews commentary authored by Newt Gingrich and Pat Nolan.  Here are excerpts:

Pope Francis’s visit to the United States is attracting a flood of attention, and preparations have been underway for months in the cities and communities that will welcome him. While the pope will be greeted by thousands as he visits our nation’s famous landmarks and cathedrals, he has also planned a stop where the residents cannot come out to greet him: a local jail in Philadelphia. A jail isn’t a typical location for the fanfare that usually surrounds a papal visit, but Pope Francis’s decision to shine a spotlight on people in jail shouldn’t come as a surprise.

The pope has often implored us through his words and actions to treat the people we put in jail or prison with respect and mercy.  Some of those in jail have committed serious crimes, while others have committed relatively minor offenses. Many struggle with mental illness or drug addiction.  Many simply can’t afford to make bail.  Treating them justly and fairly is a strong Christian, and quintessentially Catholic, imperative.  After all, Jesus taught us to visit those in prison.  He also told us that what we do for the least of our brothers and sisters we do for Him.

When Pope Francis visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect.  Pope Francis continues the tradition of Catholic leaders urging us to offer hope and a second chance to prisoners....

The pope’s visit to the jail in Philadelphia will call attention to a part of our criminal justice system that receives too little notice: local jails.  Prisons are the focus of most of the discussion about criminal justice reform, even though 20 times more inmates (12 million) pass through our jails each year compared to our prisons.  The jail population is different from prisons because most jail inmates are nonviolent offenders awaiting trial, and innocent in the eyes of the law.

Indeed, many of those in jail don’t belong there.  One in six men and one in three women in local jails have serious mental illnesses — rates much higher than in the general public. These people are sick, not always bad.  They need treatment, not necessarily incarceration. Others are held in jail for months and even years because they don’t have the money to post a small bond.  For example, in New York City, almost a third of inmates in 2012 were held until trial because they could not pay a bond of $500 or less.

We see time and time again that overincarceration tears families apart by locking up fathers, mothers, brothers, and daughters mostly for minor crimes.  The vast majority of people in our jails are there for nonviolent offenses like traffic violations or drug use. When they are finally released, most have lost their jobs, which leaves them unable to support their families and puts stress on their loved ones and the community....

We have worked over the last decade to build conservative support for criminal justice reform, rooted in our political views as well as our faith.  Our Catholic beliefs hold that each person is a child of God and worthy of respect.  A cornerstone of the Catholic faith is that redemption is available to everyone, no matter what they have done. We are all sinners, and the ground is level at the foot of the Cross.

You don’t have to be a Catholic to see the importance of Pope Francis’s message.  When he visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect, and offer them a second chance to turn their lives around.

September 23, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (1)

Tuesday, September 22, 2015

Suggesting unionization as a (partial) solution to to federal indigent defense problems

An informed reader, in response to the recent NACDL report about the state of federal indigent defense resprentation (noted here), sent me a letter and requested I post it in this space.  I am happy to do so:

The National Association of Criminal Defense Lawyers has just issued a hard-hitting report [available here], "Federal Indigent Defense 2015: The Independence Initiative."  The first of its seven points is that federal indigent defense needs independence from the judiciary. In response, the libertarian Cato Institute has already argued [here] that "one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system."  The idea is, among other things, impractical.  The one practical reform "that is entirely missing from the report" is something else entirely: unionization of attorneys in Federal Defender offices (which nation-wide represent most federal criminal defendants).

The one unionized federal defender office — Federal Defenders of New York, Inc., which covers all of New York City and several surrounding counties — has been a success story. Without fear of losing our jobs (except, of course, for cause), lawyers in our unionized office can devote ourselves more effectively to our primary mission: zealous representation of clients. No lawyer needs fear dismissal for reasons that are political, unfair or arbitrary.

We work in an office with superb management and in two federal districts with outstanding judges.  Like others around the country, the good faith of everyone in the criminal justice system goes a long way.  But we also live in a country of laws, not just people, and we benefit from institutional structures, including a union, that allows us to make arguments before judges as compellingly as we can, as respectfully as we are — and without fear.  

I am attaching a more detailed letter that I wrote to the NACDL Federal Indigent Task Force a year ago.  [Available here: Download Letter on NACDL Federal Inidgent Task Force.7.25.2014] 


Douglas G. Morris

Vice-President – Unit for Federal Defenders of New York

Association of Legal Aid Attorneys, UAW 2235 (AFL-CIO)

Assistant Federal Defender

Federal Defenders of New York, Eastern District of New York

September 22, 2015 in Who Sentences? | Permalink | Comments (4)

"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"

Social2The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling.  In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:

In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.

While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.

In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.

That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”

This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.

Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.

Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.

Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.

There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.

September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Former peanut CEO (sort of) gets less than LWOP for salmonella outbreak

As reported in this Reuters article, high-profile federal white-collar sentencings yesterday culminated in a set of severe sentences for executives culpable in a harmful food safety crime.  Here are the details:

The former owner of a peanut company in Georgia was sentenced to 28 years in prison on Monday for his role in a salmonella outbreak that killed nine people and sickened hundreds, a rare instance of jail time in a food contamination case.  

Stewart Parnell, 61, who once oversaw Peanut Corporation of America, and his brother, Michael Parnell, 56, who was a food broker on behalf of the company, were convicted on federal conspiracy charges in September 2014 for knowingly shipping salmonella-tainted peanuts to customers.  Contamination at the company's plant in Blakely, Georgia, led to one of the largest food recalls in U.S. history and forced the company into liquidation.

U.S. District Judge Louis Sands gave Michael Parnell 20 years in prison.  Mary Wilkerson, 41, a former quality control manager at the plant who was found guilty of obstruction, was sentenced to five years in prison.  Stewart Parnell faced life in prison and his brother faced about 24 years.

Before the judge issued the sentences, Stewart Parnell said; “This has been a seven-year nightmare for me and my family. I’m truly, truly sorry for what’s happened.”             

A man whose mother died from eating tainted peanut butter was among those who told a federal judge on Monday that the Parnells should receive stiff prison time.  Jeff Almer, of Brainerd, Minnesota, said his mother, Shirley Almer, was among the nine people killed in the salmonella outbreak linked to the company in 2009.  "My mother died a painful death from salmonella, and the look of horror on her face as she died shall always haunt me," Almer said during the hearing on Monday in Albany, Georgia.  "I just hope they ship you all to jail," Almer said.

During the seven-week trial last year, prosecutors said the Parnell brothers covered up the presence of salmonella in the company's peanut products for years, even creating fake certificates showing the products were uncontaminated despite laboratory results showing otherwise.  The Parnells have said they never knowingly endangered customers, and their supporters asked a judge on Monday to show mercy....

An official with the Centers for Disease Control and Prevention testified at the trial that the company's peanut products sickened 714 people in 46 states, including 166 of whom were hospitalized.

Though not formally an LWOP sentence, the federal prison term here means the main defendant will have to live until well into his mid-80s to make it through his whole sentence even with time off for good behavior (and the brother will need to make it to his mid 70s). Thus, while I believe these are technically below-guideline sentences, they are still quite severe given the defendants' ages.

Prior related posts:

September 22, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Monday, September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines

In this prior post a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the possibility that Johnson could impact past, present and future sentencings pursuant to the career offender guideline of the US Sentencing Guidelines. 

Since then, I believe that the Department of Justice has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is also used in the guideline definition of a career offender.  In addition, as noted in this post from last month, the US Sentencing Commission has proposed amending the career offender guideline to eliminate the Johnson-problematic definition of a crime of violence.   And I believe at least a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But today an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (Sept. 21, 2015) (available here), squarely addresses this issue and rules that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  Here is how the Matchett opinion gets started:

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines.  Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence.  Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning.  After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon.  When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee.  The district court did not err when it denied Matchett’s motion to suppress.  It also correctly determined that Matchett’s previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett’s resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer.  We reject Matchett’s argument that the definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).  The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines.  We affirm.

Some prior related posts:

September 21, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?

The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:

After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday.  But today, Friday, he's still alive.  That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.

Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection.  But time and again, state officials and the legal system rejected his team's claims of innocence.

In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case.  The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty.  Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.

"Point to a single government program that works flawlessly.  Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.

The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment.  They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals.  Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death.  And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....

Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions.  After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.

Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska.  The latter two abolished capital punishment this year.  Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.

Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society.  It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.

September 21, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, September 20, 2015

"Risk Assessment in Criminal Sentencing"

The title of this post is the title of this notable new paper by John Monahan and Jennifer Skeem now available via SSRN. Here is the abstract:

The past several years have seen a surge of interest in using risk assessment in criminal sentencing, both to reduce recidivism by incapacitating or treating high-risk offenders and to reduce prison populations by diverting low-risk offenders from prison.  We begin by sketching jurisprudential theories of sentencing, distinguishing those that rely on risk assessment from those that preclude it.  We then characterize and illustrate the varying roles that risk assessment may play in the sentencing process.

We clarify questions regarding the various meanings of “risk” in sentencing and the appropriate time to assess the risk of convicted offenders.  We conclude by addressing four principal problems confronting risk assessment in sentencing: conflating risk and blame, barring individual inferences based on group data, failing adequately to distinguish risk assessment from risk reduction, and ignoring whether, and if so, how, the use of risk assessment in sentencing affects racial and economic disparities in imprisonment.

September 20, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

You be the federal judge: how long a prison term for peanut executives convicted of selling salmonella-tainted food?

In this prior post a few months ago, I highlighted that a peanut company executive convicted of selling salmonella-tainted food was facing an “unprecedented” federal life without parole sentence according to the recommended guideline sentencing range. The sentencing proceeding, as reported in this new AP piece, is slated to go forward this Monday. Here is context for answering the query in the title of this post:

A year after a federal jury convicted him of crimes behind a salmonella outbreak blamed for killing nine people and sickening hundreds more, former peanut executive Stewart Parnell returns to court facing possible imprisonment for the rest of his life.

A sentencing hearing was scheduled for Monday in Albany, Georgia, for the 61-year-old former owner of Peanut Corporation of America. Due in U.S. District Court with Parnell were two co-defendants — his brother and a plant manager — also found guilty in what experts called the first food-poisoning trial of American food processors.

Parnell was convicted Sept. 19, 2014, of knowingly shipping salmonella-tainted peanut butter from his plant in Blakely, Georgia, to Kellogg's and other customers who used it in products from packaged crackers to pet food. The jury also found Parnell and his brother, food broker Michael Parnell, guilty of faking results of lab tests intended to screen for salmonella.

The brothers were charged after a salmonella outbreak that sickened 714 Americans in 46 states was traced to Peanut Corporation's plant in Blakely, Georgia, in early 2009. The Centers for Disease Control and Prevention reported that nine people who ate tainted peanut butter died during the outbreak in 2008 and 2009, though it couldn't say for sure salmonella caused each death.

Federal investigators found a leaky roof, roaches and evidence of rodents, all ingredients for brewing salmonella. They also uncovered emails and records showing food confirmed by lab tests to contain salmonella was shipped to customers anyway. Other batches were never tested at all, but got shipped with fake lab records saying salmonella screenings were negative.

In a court order Friday, Judge W. Louis Sands noted Stewart Parnell faces a possible prison sentence of 9,636 months — which comes to 803 years. The U.S. Probation Office, which prepares pre-sentencing reports to help guide federal judges, recommended the stiff sentence based on the number of illnesses as well as estimates that the outbreak, which triggered one of the largest food recalls in U.S. history, cost Parnell's corporate customers $144 million.

The judge has the authority to impose a lighter sentence. Randy Napier, whose 80-year-old mother in Ohio died from salmonella poisoning after she ate contaminated peanut butter from Parnell's plant, said he plans to testify at the hearing and ask the judge to show little mercy. "We need to send a message to these food manufacturers," said Napier of Durham, North Carolina. "No one else should have to go through what we did, watching my mother die. I'm hoping to have closure. It's been six years of utter hell."

Attorneys in the case say voluminous testimony from victims seeking stiff sentences and defendants' relatives asking for leniency could push the sentencing proceedings into a second day Tuesday.

Parnell's attorneys insist locking him up for life would be too harsh. Even food-safety attorney Bill Marler, who represented many families of victims in the salmonella outbreak, has said life imprisonment would be "unprecedented."...

Michael Parnell, who was convicted on fewer counts than his brother, faces a recommended punishment of 19 to 24 years in prison. Co-defendant Mary Wilkerson, the Georgia plant's quality control manager, faces five years. She was convicted of obstruction of justice.

Three deaths linked to the outbreak occurred in Minnesota, two in Ohio, two in Virginia, one in Idaho and one in North Carolina.

Prior related post:

September 20, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (7)

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, September 18, 2015

Shouldn't former federal judge Mark Fuller now be federally prosecuted for perjury?

The question in the title of this post prompted by this new AP article, headlined "Judicial Conference says former federal judge's conduct was reprehensible, impeachable." Here are the details:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge — had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.  

In a letter to the House Judiciary Committee [which can be accessed here], the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary. "This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner....

The Judicial Conference wrote that there was substantial evidence that the judge "physically abused Kelli Fuller at least eight times, both before and after they married, which included and culminated in the assault that took place on Aug. 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia." The conference wrote that Fuller denied under oath to the investigating committee that he ever hit, punched or kicked his wife, and that the investigating committee considered those to be false statements. The Judicial Conference also cited a separate incident, on which it did not elaborate, saying Fuller in 2010 made a false statement to the chief judge that caused a disruption in operations and a loss of public confidence in the court.

The House committee is not releasing the full report, which contains some sensitive victim information. Fuller was placed on leave after his arrest. In May, he announced that he was resigning effective Aug. 1. The Judicial Council of the U.S. 11th Circuit at the time said Fuller's actions might have warranted impeachment, but the reasons for the determination were not released until this week.

Fuller was appointed to the bench in 2002 by then-President George W. Bush. He is perhaps best known for presiding over the 2006 public corruption trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

As celebrity white-collar attorneys surely recall, in recent times a number of prominent public figures ranging from Barry Bonds to Roger Clemens to Marion Jones to 'Lil Kim to Scooter Libby have been federally prosecuted for alleged acts of perjury that seems far less serious and consequential than what the Judicial Conference has found former judge Mark Fuller committed.  Absent some prominent explanation for why a federal perjury prosecution would not be worthwhile in this setting, I will be mighty disappointed and a bit concerned if Fuller does not face sanctions for his apparent criminal behavior in this matter.  (Critically, I am not — at least not yet — asserting that Fuller should be imprisoned for his lying under oath to cover up his misbehavior and stay in his position as a federal judge.  But I am saying (former state DA prosecutor) Fuller ought to at least face federal criminal charges and be subject to the heat that comes with a formal federal prosecution.)

September 18, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15)

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

PopeFrancisIsis-v2The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Ohio judges pushing for "truth in plea bargaining"

My Columbus Disptach this morning has this notable new article about a notable new push for a new criminal procedure rule concerning plea bargaining practices here in the Buckeye state.  The article is headlined "Plea deals must reflect crime committed, judges demand," and here are excerpts:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape. “It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.”

With Donnelly leading the charge for change, the Ohio Supreme Court — unless legislators object — could amend court rules to require charges in felony plea deals to be factually based — to reflect what actually occurred. “Ending the charade” would promote transparency and foster public accountability in the justice system, Donnelly said. “We can be allowing pleas to something that everyone knows didn’t happen.”

The court’s rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state’s judges, is on board with the change, calling “often convenient” plea agreements “contrary to the objectives of the justice system.”

Advocates for sexual-assault victims also support the change, saying pleas to lesser, unrelated offenses leave victims’ trauma unacknowledged and victims feeling “like the justice system let them down.”

Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. “While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ” Prosecutors and defense lawyers, with the ultimate approval of judges, “have to have some freedom, some negotiating room. ... There’s give and take by both sides. Each side has its objectives. The law should permit them that liberty,” Wilford said.

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said. “Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013.

Franklin County Prosecutor Ron O’Brien agrees with Donnelly that plea deals “should resemble what the conduct was.” He and his assistants work to base plea agreements on the factual circumstances of cases and preserve sex-offender registration, often by using lesser and included “attempted” offenses, such as attempted rape, he said. “It’s been on everyone’s radar for a number of years. Anyone who has been doing it to an improper degree probably already has changed that practice,” O’Brien said.

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court’s criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. “If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, ‘Was there actually justice?’  ” Wolaver asked.

September 18, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Lots of new data from BJS on prisoners and from USSC on federal sentencing

Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources.  Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:

From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"

From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"

Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics.  With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:

September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Notable Left/Right morality accounting of the "Truth about Mass Incarceration"

Cover_20150921_tocProviding the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States.  The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full.  Here is an except from heart of the commentary, as well as its closing paragraph:

So the stock liberal charges against “mass incarceration” simply don’t hold water.  There is no racist conspiracy, nor are we locking everyone up and throwing away the key.  Most prisoners are guilty of violent or property crimes that no orderly society can excuse.  Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.

But just because liberals are wrong does not mean the status quo is right.  Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.  The criminal-justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets.  And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like.  As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities.  Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods.  Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims.  But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....

American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.

September 17, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California"

The title of this post is the title of this notable new article authored by Steven Shatz now available via SSRN. Here is the abstract:

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness.  The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences.  In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes.

Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue.  In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster.  The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review.

The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required.  The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant.  Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.

September 17, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, September 16, 2015

Hoping (again) to hear criminal justice reform discussion during tonight's GOP debate

Regular readers know I am ever eager to have the national political conversation focus on criminal justice issues, and thus today I am giddy with pre-GOP-debate anticipation again.  As just explained via this new post over at Marijuana Law, Policy and Reform, the location and run-up to tonight's debate has me thinking that federal marijuana laws and policies could possibly get some attention.  In addition, as detailed in lots of prior posts linked below, there are plenty of other criminal justice topics that would merit attention as CNN tries to encourage a "real debate" among the GOP candidates on topics in which they have some real disagreements.

I am due to be off-line the rest of this afternoon, so this will be my last pre-debate post.  I will close it not only by linking to lots of my pre-debate questions from last month, but also by again encouraging readers to fill the comments with questions they would like to see asked of the candidates.

Some recent related posts:

September 16, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (6)

Oklahoma's top criminal court stays execution of Richard Glossip for two weeks

As reported in local news pieces here and here, Oklahoma Governor Mary Fallin late yesterday refused to delay today's scheduled execution of Richard Glossip amid concerns about his factual guilt.  But today the Oklahoma Criminal Court of Appeals issued a stay of execution for death row inmate Richard Glossip. Here are the basics:

Just before 12 p.m. Wednesday, a stay has been granted for him until September 30. Late Tuesday afternoon, Gov. Mary Fallin said she will not grant Glossip a stay of execution. Just before 5 p.m. Tuesday, Glossip’s attorneys filed the appeal with the Oklahoma Court of Criminal Appeals. It's their last avenue to stop the execution.

Court documents released on Wednesday stated that, "Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks. The execution of Richard Eugene Glossip shall be reset, without further order, for September 30, 2015."

During a news conference on Wednesday, the Director of Oklahoma Department of Corrections said he does not know the reasons behind the stay, and that at this time, they are shutting down all procedures.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence

As reported in this local piece, headlined "Accused gunman in Charleston church shooting proposes guilty plea," a high-profile mass murderer is apparently prepared to cut a plea deal to try to avoid a state capital prosecution. Here are the details and context:

An attorney for the man accused of gunning down nine people at a historic black church in South Carolina said on Wednesday his client is willing to plead guilty to state murder charges if the move would spare him a death sentence.

A guilty plea by Dylann Roof, 21, in exchange for a sentence of life in prison without parole also would spare the victims' families and shooting survivors from the trauma of trial proceedings, attorney Bill McGuire said.

His remarks came during a hearing in Charleston over whether a judge will release 911 calls and police reports about the June 17 massacre during a Bible study meeting at Charleston's Emanuel African Methodist Episcopal church. Judge J.C. Nicholson in July blocked the release of investigative materials in the state's murder case against Roof, who is white, citing concerns about graphic photos of the crime scene and emergency calls that might have recorded the sounds of victims.

Assistant U.S. Attorney Nathan Williams, who is prosecuting Roof in federal court, said the families and survivors were "re-traumatized" every time they heard, saw or read something about the killings. He argued for the documents, including coroner's reports and witness statements, to remain sealed. "It may take years before people are ready to see that," Williams said.

Jay Bender, an attorney for news organizations challenging the gag order, asked the judge to review documents and photos to decide whether some could be released. Media outlets have argued that transparency ensures a defendant's right to a fair trial. "There is an alternative to the imposition of a cloak of secrecy over what has happened in Charleston," Bender said....

In addition to state murder charges, Roof faces 33 federal hate crime and weapons charges that also could result in a death sentence but federal prosecutors have not said if they will pursue that in their case. The federal charges are based on evidence that Roof targeted the black victims because of their race and "in order to interfere with their exercise of religion," U.S. Attorney General Loretta Lynch said.

A few prior related posts:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Split en banc Third Circuit struggles through how to review and assess Alleyne error

A decade ago, way back in the early Blakely and Booker days, this blog covered lots of cases dealing with lots of Sixth Amendment sentencing problems and circuit court efforts to sort through all the problems. Anyone with a continued fondness for the legal challenges and debates of that era will want to be sure to find the time to read today's work by the full Third Circuit in US v. Lewis, No. 10-2931 (3d Cir. Sept. 16, 2015) (available here). I will provide the highlights via the first paragraph from each of the three opinions.

Here is the start of the plurality opinion in Lewis:

Jermel Lewis was sentenced for a crime with a seven-year mandatory minimum — brandishing a firearm during and in relation to a crime of violence — notwithstanding the fact that a jury had not convicted him of that crime.  Instead, he had been convicted of the crime of using or carrying a firearm during and in relation to a crime of violence, which has a five-year mandatory minimum. Lewis was never even indicted for the crime of brandishing.  In Alleyne v. United States, the Supreme Court held that this scenario, i.e., sentencing a defendant for an aggravated crime when he was indicted and tried only for a lesser crime, violates a defendant’s Sixth Amendment right to a jury trial.  133 S. Ct. 2151, 2163-64 (2013).  Even though that constitutional issue is settled, we still must address the issue of whether the error that transpired in this case was harmless. We conclude that the error was not harmless because it contributed to the sentence Lewis received.  Accordingly, we will vacate Lewis’s sentence and remand for resentencing.

Here is the start of the concurring opinion in Lewis:

Jermel Lewis was charged with and convicted of using or carrying a firearm, but was eventually sentenced on the basis of a different, aggravated crime.  Conviction of the aggravated crime would have required proof of an element unnecessary to a using or carrying offense: that Lewis had brandished a firearm.  Lewis’s indictment did not charge him with brandishing, nor did the jury find that he had committed that crime beyond a reasonable doubt.  Yet Lewis was subjected to the enhanced mandatory minimum sentence required for brandishing.  I agree with the majority that this error demands resentencing; the new sentence should be based solely on the crime with which Lewis was actually charged and for which he was convicted.  But I would hold that this error was structural and therefore reversible if properly preserved.  Structural errors do not require a court to inquire into whether the error was harmless.

Here is the start of the dissenting opinion in Lewis:

The plurality finds that Jermel Lewis’s substantial rights were affected when he was sentenced to a seven-year mandatory minimum sentence for brandishing a weapon during a crime of violence, despite undisputed and overwhelming testimony that he pointed a gun at many people during a robbery.  Though what occurred below was error, in my view, for the reasons explained in Judge Smith’s concurring opinion, the error occurred both at trial and at sentencing.  So, upon a review of the uncontroverted evidence presented to the grand and petit juries, I would hold that the error was harmless.

September 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered | Permalink | Comments (0)

"The Literal Cost of Solitary Confinement: Why are prisoners forced to pay fines when they are put in isolation?"

The title of this post is the headline of this notable New Republic piece, and here is an excerpt:

The United Nations has determined that solitary confinement may amount to torture: It can destroy the mind, sometimes the spirit.  And yet many jails and prisons around the country have decided that this punishment alone is not harsh enough.  It’s not widely known, but inmates who are determined to have committed a disciplinary infraction are regularly subjected to fines that can range into the hundreds of dollars on top of weeks or months-long solitary sentences.  Both the psychological damage caused by extreme isolation and the financial burden of the jail debt can hang over these people once they’re released, often making re-entry into society nearly impossible.

“When the system is built on punishment, you find every chance you get to damage people more,” said Glenn Martin, who spent six years in New York state prisons and founded the criminal justice reform group JustLeadershipUSA.  “Unfortunately, prisons in America have evolved into places that are devoid of values such as rehabilitation, fairness and human dignity.”

Prison officials in at least six state systems have the authority to impose fines in addition to solitary for a single rule violation.  Wyoming charges up to $50, Georgia up to $100, Oregon as much as to $200.  Fees in the states of New York, Kansas, and South Dakota range between $5 and $20.  (Wyoming, New York State, Georgia, and Kansas dismiss fines once an inmate is released or put them on hold in case the person returns. South Dakota said it doesn’t use solitary confinement, but the ACLU contends that the state’s isolation policies fit the definition.)...

While some of the state disciplinary fees may sound insignificant, small fines can pile up fast.  They pile up on people who often were homeless or unemployed before they were incarcerated and will face the same situations upon release.  The ACLU of Kansas said inmates could easily rack up thousands of dollars of debt just from disciplinary fines....

For many inmates and their families, disciplinary fines accumulate on top of court and attorney fees, court-ordered restitution, and child support.  And around the country, inmates may be obligated to pay for a seemingly infinite number of additional charges. Some of those costs: drug and alcohol abuse treatment; medical, dental, and psychiatric services; vocational training; toilet paper, laundry, and clothing; phone and video calls, food from the jail store, booking fees, drug testing, and fingerprinting.  In some jurisdictions, inmates pay “room and board” for the time they spend in jail awaiting trial.  Ninety percent of local jails collect revenue from incarcerated people. Those inmates pay an average of $1,259 per person per year to local facilities, according to a recent study by the Vera Institute of Justice.

Prisoners can even be charged for trying to kill themselves.  “I’ve seen it multiple times,” said Elisabeth Owen, the managing director of the Prisoners’ Justice League of Colorado.  “Someone hangs themselves and then they get a medical bill for thousands of dollars.”

September 16, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal

This local article from Indiana, headlined "Convicted sex offenders object to Fogle's proposed plea deal," reports that at least a couple of incarcerated federal child pornography offenders have written to a federal judge to complain about how federal prosecutors used their discretion to resolve sex offense charges against former Subway pitchman Jared Fogle. Here are the basics:

Sex offenders in prison right now around the country are writing the judge here in Indiana handling the Jared Fogle case, upset over his possible plea deal.

In the letters — one from an inmate in Tucson, the other from an inmate in Florida — both talk about the time they are serving for distribution of child pornography.  One is serving a 40-year sentence, the other 16.5 years.

They are critical of Fogle's plea deal that could have him serve 5- to 12.5 years behind bars. They argue they are serving far more time for child pornography, and Fogle is also accused of having sex with underage girls.  Both asked for the judge to deny the plea deal.  Fogle's sentencing is set for November 19.

These two inmate letters make for fascinating reads and they can be accessed at this link. Among other stories, these letters provide an interesting perspective on how federal prosecutorial discretion can and does contribute to federal sentencing disparity and on how this disparity is perceived by those most impacted by it.  Notably, in a post last month I asked, Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?, and the question prompted a good comment dialogue.  Obviously, some federal child porn offenders think the answer to this question is obviously yes.

Prior related posts:

September 16, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)