Tuesday, October 10, 2017

Big fine and community service, but no prison time, for law firm CFO convicted of fraud in NY state court

This Reuters article, headlined "Ex-Dewey & LeBoeuf executive avoids prison time after fraud conviction," report on the alternative sentence a notable lawyer received after a conviction for his law firm's notable problems. Here are the details:

The former chief financial officer of defunct law firm Dewey & LeBoeuf, whose collapse five years ago was the largest failure of a law firm in U.S. history, has avoided prison time after being convicted of defrauding the firm’s investors. Joel Sanders, 59, was sentenced on Tuesday by Justice Robert Stolz in Manhattan Supreme Court to pay a $1 million fine and perform 750 hours of community service.

The sentence was handed down five months after the firm’s former executive director, Stephen DiCarmine, was acquitted of the same charges, and 19 months after prosecutors dropped charges against its former chairman, Steven Davis.

“I‘m deeply sorry for anything I did or didn’t do that caused anybody harm,” Sanders said in court before being sentenced. His lawyer, Andrew Frisch, declined to comment on the sentence. Frisch said in May that he planned to appeal Sanders’ conviction.

The office of Manhattan District Attorney Cyrus Vance had sought up to four years in prison for Sanders. The criminal case against Dewey & LeBoeuf’s executives was one of the most significant white-collar prosecutions brought by Vance since he took office in 2010. “This case demonstrates the Office’s commitment to prosecuting those who sacrifice professional integrity for financial gain,” Vance said in a statement on Tuesday.

The law firm, which once had close to 1,400 lawyers, went bankrupt in May 2012, unable to pay for the lavish compensation packages it had promised to recruit star partners. Prosecutors said the executives used illegal accounting adjustments between 2008 and 2012 to conceal the firm’s financial difficulties from investors in its bonds, including Bank of America Corp and HSBC Holdings Plc.

Seven lower-level employees pleaded guilty to criminal charges in connection with Vance’s investigation.

The first trial for the three executives ended in a mistrial in October 2015 when jurors, after four months of testimony and a month of deliberations, declared themselves hopelessly deadlocked on most counts.

After that trial, Davis struck a deal with prosecutors to avoid a second trial, agreeing to a five-year ban from practicing law in New York. Justice Robert Stolz dismissed the most serious charge, grand larceny, against the other two men. The second trial for Sanders and DiCarmine began in February 2017 and lasted about three months.

October 10, 2017 in Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

"The Idea of 'the Criminal Justice System'"

The title of this post is the title of this interesting-looking new paper authored by Sara Mayeux now available via SSRN. Here is the abstract:

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s.  This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science.

The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.”  Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations.  For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

October 10, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (0)

Monday, October 9, 2017

Reviewing the backstory of the Supreme Court's recent capital cert grant

As noted in this post a couple of weeks ago, the Supreme Court recently added a capital case to its docket. Adam Liptak's latest New York Times "Sidebar" column is focused on that new case.  This piece, headlined "Facing the Death Penalty With a Disloyal Lawyer," includes these passages:

Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer paid him a visit.  It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse.  Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent. Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.

The lawyer, Larry English, said he had a different strategy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled in a sworn statement.  “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.”...

Conceding guilt in a capital case is sometimes the right play.  Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects.

Mr. McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. There was also reason to think that Mr. McCoy’s belief in his innocence was both earnest and delusional.

There was no ambiguity in Mr. McCoy’s position, Mr. English recalled. “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down. “Mr. English is your attorney, and he will be representing you,” the judge said....

During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.” Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”

“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

Whatever its wisdom, Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him. “Given the circumstances of this crime and the overwhelming evidence incriminating the defendant,” the court said, “admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.

That is the question in the new case, McCoy v. Louisiana, No. 16-8255.  The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.

In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”

Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.” Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

October 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability"

The title of this post is the title of this notable new paper authored by Christopher Slobogin. Even more than the title, the paper's abstract suggests it is a must-read for sentencing fans:

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy.  At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein.  It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.  It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 9, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Sunday, October 8, 2017

New California law limits reach of registry for lower-level sex offenders

As reported in this local article, headlined "California will soon end lifetime registration of some sex offenders under bill signed by Gov. Jerry Brown," some significant changes are now in the works for the sex offender registry in the Golden State.  Here are the details:

Thousands of Californians will be allowed to take their names off the state’s registry of sex offenders as a result of action Friday by Gov. Jerry Brown.  Brown signed legislation that, when it takes effect Jan. 1, will end lifetime listings for lower-level offenders judged to be at little risk of committing new crimes.

The measure was introduced at the request of Los Angeles County Dist. Atty. Jackie Lacey and other law enforcement officials who said the registry, which has grown to more than 105,000 names, is less useful to detectives investigating new sex crimes because it is so bulky.

“California's sex offender registry is broken, which undermines public safety,” said Sen. Scott Wiener (D-San Francisco), who introduced the bill.  “SB 384 refocuses the sex offender registry on high-risk offenders and treats low-level offenders more fairly.”

The registry currently requires law enforcement officials to spend hours on paperwork for annual evaluations of every offender, including those who are low risk and have not committed a crime for decades, Wiener said.

Brown declined to comment Friday, but his office referred to a statement put out last month. “SB 384 proposes thoughtful and balanced reforms that allow prosecutors and law enforcement to focus their resources on tracking sex offenders who pose a real risk to public safety, rather than burying officers in paperwork that has little public benefit,” said Ali Bay, a spokeswoman for the governor, last month.

The measure was opposed by many Republican lawmakers and Erin Runnion, who in 2002 founded the Joyful Child Foundation, an Orange County advocacy group for victims, after the abduction, molestation and murder of her 5-year-old daughter, Samantha.  Runnion said parents should be able to check a comprehensive registry to see if a potential teacher, youth league coach or babysitter for their children has ever been convicted of a sex crime.

California is one of only four states that require lifetime registration of sex offenders. The others are Alabama, South Carolina and Florida.

The new law signed by the governor creates a tiered registry, with high-risk offenders on the registry for life and others able to petition to be removed after either 10 or 20 years without re-offending, depending on the offense.  Offenses for which registrants can be removed from the list after 20 years include include rape by deception and lewd and lascivious behavior with a child under 14.

Offenders who petition for removal after 10 or 20 years will be assessed by a judge — with input from the local district attorney — who can grant or deny the petition.

October 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9)

Smarter Sentencing Act reintroduced in Senate with lots of support from both parties

In prior posts here and here, I noted the introduction this past week of two notable federal statutory criminal justice reform bills in the US Senate.  But this press release from the office of Senator Mike Lee details that a third notable bill, the Smarter Sentencing Act, was also formally introduced. Here are the basics from the press release:

[A] bipartisan group of U.S. Senators led by Mike Lee (R-UT) and Dick Durbin (D-IL) reintroduced the Smarter Sentencing Act of 2017. This legislation would modernize federal drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses. Senators Lee and Durbin were joined in this effort by Sens. Jeff Flake (R-AZ), Pat Leahy (D-VT), Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), Tom Udall (D-NM), Ron Wyden (D-OR), Brian Schatz (D-HI), Angus King (I-ME), Gary Peters (D-MI), Ed Markey (D-MA), Tammy Duckworth (D-IL), Bernie Sanders (I-VT), and Martin Heinrich (D-NM).

“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”

Speaking of criminal justice reform generally, Senator Lee said, “over the past week, I’ve introduced or cosponsored three criminal justice reform bills—the Smarter Sentencing Act, the Sentencing Reform and Corrections Act, and the Mens Rea Reform Act. I would proudly vote for these bills, individually or with one or more of them packaged together, because I think reforming our criminal justice system is a moral and policy imperative. Any step forward will make a real difference. I look forward to continuing to work on these bills and on criminal justice reform issues more broadly, which will always remain a priority for me.”

The United States has seen a 500 percent increase in the number of inmates in federal custody since 1980, and almost 50 percent of those federal inmates are serving sentences for drug offenses. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster distrust of the criminal justice system.

I cannot yet find the text of the 2017 version of the Smarter Sentencing Act, but I presume it is similar to the 2015 version at this link.

A few prior related posts:

October 8, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Friday, October 6, 2017

"Access to Health Care and Criminal Behavior: Short-Run Evidence from the ACA Medicaid Expansions"

The title of this post is the title of this notable new empirical paper available via SSRN authored by Jacob Vogler. Here is the abstract:

I investigate the causal relationship between access to health care and criminal behavior following state decisions to expand Medicaid coverage after the Affordable Care Act. Many of the newly eligible individuals for Medicaid-provided health insurance are adults at high risk for crime.  I leverage variation in both insurance eligibility generated by state decisions to expand Medicaid and county-level treatment intensity measured by changes in insurance rates.

My findings indicate that the Medicaid expansions have resulted in significant decreases in annual rates of reported crime, including both property and violent crime, by between 3 to 5 percent per 100,000 people.  A within-state heterogeneity analysis suggests that crime impacts are more pronounced in counties that experienced larger gains in insurance rates among individuals newly eligible for Medicaid coverage.  The estimated decrease in reported crime amounts to an annual cost savings of nearly $400 million.

October 6, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (15)

US Sentencing Commission continues diving into issues surrounding synthetic drugs

A helpful reader reminded me today that, in the midst of busy times, I failed to spotlight this past week's US Sentencing Commission public hearings on October 4 concerning "synthetic cathinones."  This USSC webpage details that this Commission spent the morning hearing "testimony from experts on ... their chemical structure, pharmacological effects, trafficking patterns, and community impact."

The hearing agenda and written statements of the nine witnesses who testified are linked at this page, and I was hoping to fins some time in the coming days to review some of this testimony.  I would be grateful to hear from readers knowledgeable on these distinctive issues as to whether any of this testimony was surprising or could lead to major changes in applicable sentencing rules.

October 6, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Nearly 35 years after his double murder, Florida executes Michael Lambrix despite non-unanimous jury death recommendations

As reported in this local article, "Florida executed an inmate Thursday who was convicted of killing two people after a night of drinking decades ago."  Here is part of the extended backstory:

Michael Lambrix, 57, died by lethal injection at 10:10 p.m. at Florida State Prison in Bradford County. For his final words, Lambrix said, “I wish to say the Lord's Prayer.” He recited the words, ending on the line “deliver us from evil,” his voice breaking slightly at times.

When he finished and the drug cocktail began flowing through his veins, Lambrix's chest heaved and his lips fluttered. This continued for about five minutes, until his lips and eyelids turned silver-blue and he lay motionless. A doctor checked his chest with a stethoscope and shined a light in both of his eyes before pronouncing him dead.

Lambrix was the second inmate put to death by the state since it restarted executions in August. Before then, the state had stopped all executions for months after a Supreme Court ruling that found Florida's method of sentencing people to death was unconstitutional. In response, the state Legislature passed a new law requiring death sentences to have a unanimous jury vote.

Lambrix's attorney, William Hennis, argued in an appeal to the nation's high court that because his client's jury recommendations for death were not unanimous — the juries in his two trials voted 8-4 and 10-2 for death — they should be thrown out.  The Florida Supreme Court has ruled that Lambrix's case is too old to qualify for relief from the new sentencing system. The U.S. Supreme Court on Thursday night denied Lambrix's last-ditch appeal.

Lambrix was convicted of killing Clarence Moore and Aleisha Bryant in 1983 after a long night of partying in a small central Florida town, Labelle, about 30 miles (50 kilometers) northeast of Fort Meyers. Lambrix said he was innocent.

He and his roommate, Frances Smith, had met the victims at a bar, and returned to their trailer to eat spaghetti and continue the party, prosecutors said.  At some point after returning to the trailer, Lambrix asked Moore to go outside. He returned about 20 minutes later and asked Bryant to come out as well, according to Smith's testimony. Smith testified at trial that Lambrix returned to the trailer alone after the killings, his clothes covered in blood.  The two finished the spaghetti, buried the two bodies and then washed up, according to Smith's testimony cited in court documents.

Prosecutors said Lambrix choked Bryant, and used a tire iron to kill Moore. Investigators found the bodies, the tire iron and the bloody shirt.

Lambrix has claimed in previous appeals that it was Moore who killed Bryant, and that he killed Moore only in self-defense. “It won't be an execution,” he told reporters in an interview at the prison Tuesday, according to the Tampa Bay Times. “It's going to be an act of cold-blooded murder.”

Lambrix's first trial ended in a hung jury. The jury in the second trial found him guilty of both murders, and a majority of jurors recommended death.

He was originally scheduled to be executed in 2016, but that was postponed after the U.S. Supreme Court's ruling in a case called Hurst v. Florida, which found Florida's system for sentencing people to death was unconstitutional because it gave too much power to judges, instead of juries. Florida's Supreme Court has ruled that the new death sentencing system only applies to cases back to 2002.

October 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Thursday, October 5, 2017

AG Sessions announces new initiatives to address violent crime

As explained in this press release, the Attorney General today announced, as the title of the release puts it, the "Reinvigoration of Project Safe Neighborhoods and Other Actions to Reduce Rising Tide of Violent Crime." Here is the text of the press release:

Today, Attorney General Jeff Sessions announced several Department of Justice actions to reduce the rising tide of violent crime in America. Foremost of those actions is the reinvigoration of Project Safe Neighborhoods, a program that has been historically successful in bringing together all levels of law enforcement to reduce violent crime and make our neighborhoods safer for everyone.

In announcing this recommitment to Project Safe Neighborhoods, the Attorney General issued a memo directing United States Attorneys to implement an enhanced violent crime reduction program that incorporates the lessons learned since Project Safe Neighborhoods launched in 2001.

In a statement on the program, the Attorney General said: "According to the FBI, the violent crime rate has risen by nearly seven percent over the past two years, and the homicide rate has risen by more than 20 percent. We cannot be complacent or hope that this is just an anomaly: we have a duty to take action.

“Fortunately, we have a President who understands that and has directed his administration to reduce crime. The Department of Justice today announces the foundation of our plan to reduce crime: prioritizing Project Safe Neighborhoods, a program that has been proven to work.

“Let me be clear – Project Safe Neighborhoods is not just one policy idea among many. This is the centerpiece of our crime reduction strategy.

“Taking what we have learned since the program began in 2001, we have updated it and enhanced it, emphasizing the role of our U.S. Attorneys, the promise of new technologies, and above all, partnership with local communities. With these changes, I believe that this program will be more effective than ever and help us fulfill our mission to make America safer."

The Attorney General also announced the following Department of Justice initiatives to help reduce violent crime:

-Additional Assistant United States Attorney Positions to Focus on Violent Crime – The Department is allocating 40 prosecutors to approximately 20 United States Attorney’s Offices to focus on violent crime reduction.

-More Cops on the Streets (COPS Hiring Grants) – As part of our continuing commitment to crime prevention efforts, increased community policing, and the preservation of vital law enforcement jobs, the Department will be awarding approximately $98 million in FY 2017 COPS Hiring Grants to state, local, and tribal law enforcement agencies.

-Organized Crime and Drug Enforcement Task Force’s (OCDETF) National Gang Strategic Initiative – The National Gang Strategic Initiative promotes creative enforcement strategies and best practices that will assist in developing investigations of violent criminal groups and gangs into enterprise-level OCDETF prosecutions. Under this initiative, OCDETF provides “seed money” to locally-focused gang investigations, giving state, local, and tribal investigators and prosecutors the resources and tools needed to identify connections between lower-level gangs and national-level drug trafficking organizations.

-Critical Training and Technical Assistance to State and Local Partners – The Department has a vast array of training and technical assistance resources available to state, local and tribal law enforcement, victims groups, and others. To ensure that agencies in need of assistance are able to find the training and materials they need, OJP will make available a Violence Reduction Response Center to serve as a “hot line” to connect people to these resources.

-Crime Gun Intelligence Centers (CGIC) – The Department has provided grant funding to support a comprehensive approach to identifying the most violent offenders in a jurisdiction, using new technologies such as gunshot detection systems combined with gun crime intelligence from NIBIN, eTrace, and investigative efforts. These FY 2017 grants were awarded to Phoenix, AZ, and Kansas City, MO.

-Expand ATF’s NIBIN Urgent Trace Program – The Department will expand ATF’s NIBIN Urgent Trace Program nationwide by the end of the year. Through this program, any firearm submitted for tracing that is associated with a NIBIN “hit” (which means it can be linked to a shooting incident) will be designated an “urgent” trace and the requestor will get information back about the firearm’s first retail purchaser within 24 hours, instead of five to six business days.

October 5, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Notable new series in Teen Vogue on youth incarceration

I have to admit that I am not a regular reader of Teen Vogue, no doubt in part because it has been a long time since I have been either a teen or in any way vogue. But I may become a regular reader if the magazine keeps covering the issues of juvenile incarceration, as it has been doing in this "Kids Incarcerated" series of article:

October 5, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

"Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"

The title of this post is the headline of this notable new Wall Street Journal article which is primarily focused on the Supreme Court oral argument yesterday in Class v. US.  Because Class is a quirky case dealing with appeal rights and because no formal opinions have been issued this Term for Justice Gorsuch to join (and because Justice Gorsuch also voted on Wednesday to vacate an injunction protecting from execution a death row defendant in Alabama), I think this WSJ headline is a bit overblown and perhaps even misleading.  But I still consider the headline revealing, as is its account of SCOTUS argument which prompted it.  Here are excerpts:

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.” Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked. “No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment — but not that those actions necessarily are illegal. “You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

A few prior related posts:

October 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, October 4, 2017

Via Fox News, Senators Grassley, Durbin, Lee and Whitehouse start a renewed pitch for their Sentencing Reform and Corrections Act

This new Fox News commentary, headlined "Bipartisan criminal justice reform is how Congress is supposed to work — the time is now to get it done," carries this notable byline: "Sen. Chuck Grassley, Sen. Dick Durbin, Sen. Mike Lee, Sen. Sheldon Whitehouse." And here is some of what these four Senators have to say:

In 2015, a diverse group of lawmakers set out to rethink our approach to federal prison sentences. Our goal: improve public safety and the rule of law by ensuring that penalties match their crime. Many months of thoughtful deliberation yielded a product that earned broad bipartisan support in Congress and from organizations around the country and across the political spectrum. And though the political winds in Washington have shifted, that broad support for comprehensive sentencing reform remains strong.

This week, we are reintroducing the “Sentencing Reform and Corrections Act” as we continue to build on the most sweeping criminal justice reform effort in a generation.

Crafted by Republican and Democratic leaders, this legislation aims to safely and sensibly reduce excessive sentences. It recalibrates prison sentences for certain drug offenders and gives judges greater sentencing flexibility while keeping stiff penalties in place for violent criminals. The bill preserves important law enforcement tools to take down large criminal organizations while expanding outlets to shield low-level nonviolent offenders from lengthy mandatory minimum prison sentences. It eliminates mandatory life sentences for three-strike drug offenders and gives judges authority to retroactively apply the Fair Sentencing Act, which reduced the sentencing disparity between offenses involving crack and powder cocaine.  The bill also includes “back end” reforms to curb recidivism by helping inmates successfully re-enter society.

We believe this is the right mix of reforms to give nonviolent offenders who’ve done significant time for their crime a second chance to rejoin their families and contribute to our communities while also reducing taxpayer costs and empowering law enforcement to keep dangerous criminals off our streets.  Our bipartisan work represents hard-fought consensus to a long-established problem. In recent years a unique and growing chorus of voices from across the political spectrum prompted a number of proposals in Congress to reform sentencing laws.  However, until now, none garnered enough support to move forward. It became clear that if we wanted to truly make progress on this issue, we would have to come together, check our differences at the door, and focus on areas where we could reach agreement....

We are encouraged by engagement from the White House on this comprehensive criminal justice reform effort. Last Congress, our bill was supported by hundreds of organizations from a variety of industries and political perspectives, including the NAACP and the Charles Koch Institute. It was also endorsed by a broad range of faith-based organizations and law enforcement leaders. We continue to welcome input from stakeholders and our colleagues in government and the law enforcement community as we make additional improvements. This bill represents the way Congress is supposed to work, and is well-positioned to be one of the most significant bipartisan achievements of the 115th Congress. It also represents an important step in our nation’s ongoing quest for justice.

Our founders declared that Americans have the inalienable rights to life, liberty and the pursuit of happiness.  Our criminal justice system needs to reflect these values. That means seeking justice for both the victim and the accused.  Our colleagues in Congress supporting these reforms may not always see eye to eye on every proposal, but we are committed to upholding America’s promise of justice for all.

UPDATE: I now see that the full text of the Sentencing Reform and Corrections Act of 2017 — all 168 pages! — is available at this link.

October 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

SCOTUS vacates by 6-3 vote lower federal court injunction which would have blocked planned Alabama execution

As reported in this local article, the "U.S. Supreme Court today cleared the way for Alabama's planned execution Thursday of inmate Jeffery Lynn Borden for the Christmas Eve 1993 shooting deaths of his estranged wife and her father in Gardendale." Here is more:

The U.S. Supreme Court issued an order granting the request of the Alabama Attorney General's Office to vacate the injunction blocking the execution that had been issued by the U.S. 11th Circuit Court of Appeals last week.  The Attorney General's Office had appealed the 11th Circuit's order to the U.S. Supreme Court on Monday.  In today's order from the U.S. Supreme Court three justices — Ruth Bader Ginsburg, Stephen Breyer, and Sonja Sotomayor — said they would have denied the Attorney General's request and kept the injunction blocking the execution in place.

The execution is scheduled for 6 p.m. Thursday at the Holman Correctional Facility in Atmore.

Over at Crime & Consequences, Kent Scheidegger has this post noting that the issue that led to the injunction concerned efforts by the condemned to contest lethal injection methods based on Alabama use of midazolam in its execution protocol.   Over at SCOTUSblog, Amy Howe has this post with a few additional particulars.

October 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Terrific series of postings looking at empirics of the drug war and mass incarceration

Over at Medium, Xenocrypt is working on "five-part series on the effects of 'The War On Drugs' on 'mass incarceration'." Two posts into this series makes it clear that serious folks should spend some serious time looking at this analysis. Here are links to the first two lengthy postings:

Why The War On Drugs Matters In Mass Incarceration, Part 1: Who Goes To Prison.

Why The War On Drugs Matters In Mass Incarceration, Part 2: The Two Dimensions Of Prison Populations.

Here is part of the conclusion of this second post:

Why do different offenses seem important when looking at “prison sentences” as when looking at “prison populations”? To try to understand that, visualize “prison populations” as two-dimensional figures. Different parts of the figure might grow in different ways — and looking at height might tell you something different than looking at area.

According to these visualizations, the 2011 state prison system had more prison terms for drugs, “public order/other”, and lower-level violent and property offenses than the 1980 state prison system, but these were mostly short. Some prison terms did grow longer, but on average mostly for murder/non-negligent manslaughter, rape/sexual assault, robbery, and burglary....

Decomposing prison population growth into admissions and time served isn’t just an intellectual or visualization exercise. As I keep saying in this series, focusing on one statistic glosses over real human consequences. Violent offenders serving longer prison terms, along with additional prison terms for “rape/sexual assault” and “other violent” offenses, really did contribute more to “the incarceration rate” per se than the War on Drugs did.

That doesn’t mean the War on Drugs didn’t happen, or that all those extra prison terms for drugs and other lower-level offenses had no effects.  By placing admissions and time served in different dimensions, we might make that distinction clearer, and more fully understand what mass incarceration has really meant.

October 4, 2017 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

After recent SCOTUS win, Duane Buck gets plea deal to avoid any possible return to death row

As reported in this local article, headlined "Condemned inmate Duane Buck escapes death penalty," a Texas murderer consolidated a recent Supreme Court victory assailing his death sentence with a plea deal that ensure he will not return to death row. Here are the details from the start of the article:

Duane Buck — wearing handcuffs, leg irons and the yellow jail uniform of a high-profile inmate — doubled over in his courtroom chair and sobbed. "I'm sorry," he said.

It was the last act of a decades-long battle to execute the 54-year-old convicted killer for a double murder, ending not with lethal injection but a plea deal in a Harris County court.

Buck's courthouse deal was the third Harris County death penalty case stemming from a successful appeal resolved with a plea bargain instead of a retrial under District Attorney Kim Ogg. Buck, whose case went to the U.S. Supreme Court and was sent back to Houston for a retrial because of concerns about racist testimony in his 1997 trial, escaped death row by admitting guilt in the shooting rampage that killed two and injured two others.

The family of Buck's victims, however, were having none of his contrition. "The boy is a cold-blooded murderer," Accie Smith told reporters after the brief hearing. "He is not a victim of racism. He's a cold-blood, calculating murderer."

Smith is one of the older sisters of Debra Gardner, Buck's girlfriend, whom he killed along with her friend Kenneth Butler. After a night of drugs, alcohol and arguing with Gardner in July 1995, Buck broke into her home and shot four people. The victims included his sister, Phyliss Taylor, and his friend Harold Ebenezer, who both survived.

After Tuesday's plea, the slain woman's daughter recounted how she hung from Buck's back as a 13-year-old and tried to keep him from attacking her mother. "You took my mom," said Shenell Gardner. "We both get to live with this. I know what I feel; you feel as well."

The battle to execute Buck began when he was sentenced to die for the slaying of his girlfriend and Butler. After 20 years on death row and several appeals, the U.S. Supreme Court earlier this year granted Buck a new sentencing hearing because of testimony from an expert who told jurors that Buck was more likely to be dangerous in the future because he is black.

Gardner's family members, who are black, said they felt betrayed by the NAACP and black ministers who took up Buck's cause. "They threw us under the bus. What happened today is a travesty and it's a disgrace," Smith, the victim's sister, said. "I will never understand why his life is more important than her life."

On Tuesday, Ogg said she did not believe prosecutors could secure the death penalty again. The defense team would have shown that for 22 years, Buck has been a model prisoner, so he is unlikely to be a future danger. Also, his sister, whom he shot, has argued for leniency in his case.

Instead of going to trial, Ogg offered Buck the opportunity to admit guilt to two additional counts of attempted murder, hoping to stack the deck when the parole board reviews Buck's case in 2035. "A Harris County jury would likely not return a death penalty conviction today in a case that's forever been tainted by the specter of race," she said. The top prosecutor said she hopes the resolution of Buck's case will mark the end of race being used against defendants in capital cases. "Race is never evidence," Ogg said.

The dilemma with Buck getting a life sentence, by either a jury trial or a plea deal, is that he is sentenced according to the law at the time of the crime. Ogg said it was important to keep Buck behind bars for the rest of his life. A sentence of "life without parole" is not an option, even if both sides agreed to it, because that punishment did not exist in 1995.

Prior related posts on SCOTUS ruling:

October 4, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, October 3, 2017

"Most Women in Prison Are Victims of Domestic Violence. That's Nothing New."

The title of this post is the title of this new Time commentary authored by history Prof Karen Cox. Here are excerpts:

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years — and rightly so — there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.... [T]hanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant.  In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household....

Nationally, as the Vera Institute Report shows, the overwhelming majority of female prisoners are held for nonviolent offenses and most are women of color. Among them, 86% are victims of sexual violence.

The difficulties faced by female prisoners are now attracting the attention of politicians.  On July 11 of this year, Sen. Cory Booker (D-NJ) introduced the Dignity for Incarcerated Women Act, or the “Dignity Act,” on behalf of himself and Sens. Kamala Harris, Elizabeth Warren and Richard Durbin. The bill aims “To improve the treatment of Federal prisoners who are primary caretaker parents.” To that end, the Dignity Act calls for a more generous visitation policy for incarcerated mothers.  If passed, it would also prevent restraining pregnant women by shackling them or placing them in strait jackets, among other forms of restraint.  Prisons would provide parenting classes and trauma-informed care for those who need it, as well as make basic healthcare products like tampons available.  Gynecological care would also be mandatory.

Since July, the Dignity Act has only advanced as far as the Senate Judiciary Committee where no further action has been taken. Given the stark realities of life for incarcerated women, action cannot come soon enough. Our nation can and should do better than to allow Jim Crow-like prison policies to continue unchecked.

October 3, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3)

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

October 3, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

"What’s Behind the Decline in the Death Penalty?"

The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."  Here is how the Q&A gets set up, along with the concluding Qs and As:

There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....

If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts?  What happens if there is a return to the murder rates of the 1980s?

The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline.  If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches.  But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime.  We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences.  Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences."  How do you resolve that tension?  What do you think opponents of long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report.  I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out.  For decades, he filed habeas petitions himself and wrote letters.  After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America.  We have replaced the death penalty with the “other death penalty.”  Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory.  To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.

October 3, 2017 in Death Penalty Reforms, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, October 2, 2017

Anyone have any wise insights after latest and worst US mass shooting?

I am soon to go off-line to prepare and then teach my 1L Criminal Law class in which we are starting an in-depth discussion of homicide laws.  In the wake of horrific events in Las Vegas, which according to the latest reports, involved a gunman's murder of "at least 58 people" and hundreds more injured, I am eager to say something wise to my students before we get started with our regular programming.  But I am not sure I have much wisdom on this front. 

As some long-time readers may recall, after some recent past mass shooting, especially Sandy Hook, I talked up the possibility of smart gun technologies being at least a partial plausible "solution" to mass shootings and extensive gun violence.  (A bunch of those prior posts are linked below.)  But I am not sure such technology could have made any difference in this latest evil killing, and I am sure that the failure of the Obama Administration or progressive states to make any progress on the smart gun front in recent years likely signals that it would be foolish to hope or expect a technological remedy to our massive gun violence problem.

Notably, Nicholas Kristof already has this op-ed up at the New York Times headlined "Preventing Future Mass Shootings Like Las Vegas."  Here are some of his closing sentiments, which strike me as thoughtful, if not quite wise:

It’s too soon to know what, if anything, might have prevented the shooting in Las Vegas, and it may be that nothing could have prevented it. In some ways, these mass shootings are anomalies: Most gun deaths occur in ones or twos, usually with handguns (which kill far more people than assault rifles), and suicides outnumber murders.

But in every other sphere, we at least use safety regulations to try — however imperfectly — to reduce death and injury.  For example, the Occupational Safety and Health Administration has seven pages of rules about ladders, which kill 300 people a year.  Yet the federal government doesn’t make a serious effort to reduce gun deaths, with a toll more than 100 times as high.

The best example of intelligent regulation is auto safety.  By my calculations, we’ve reduced the auto fatality rate per 100 million miles driven by more than 95 percent since 1921. There was no single solution but rather many incremental efforts: seatbelts, air bags, padded dashboards, better bumpers, lighted roads, highway guardrails, graduated licenses for young people, crackdowns on drunken driving, limits on left turns, and so on.  We haven’t banned automobiles, and we haven’t eliminated auto deaths, but we have learned to make them safer — and we should do the same with guns.

The analogy between driving/cars and guns does not quite work for a variety of reasons, but there is surely a kind of wisdom in the idea that we can and should try to improve gun safety in a variety of incremental ways without the political and practical problems posed by proposals involving prohibitions.  And, perhaps ironically, Prez Donald Trump may be better positioned than any recent president to navigate the challenging gun politics that often impeded efforts to improve gun safety.  Though I have little reason to believe Prez Trump will be eager to make improving gun safety a political priority, not long ago I had little reason to believe that there would ever be a Prez Trump.  

A few recent and older related posts:

October 2, 2017 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (27)

"Plea Bargains Are a Travesty. There's Another Way."

I just noticed this recent Megan McArdle commentary at Bloomberg View which is summarized by its subheadline: "Better to apply fewer laws more consistently than to continue the U.S.’s current 'randomized draconianism'." Here are excerpts:

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle.  So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial....

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial.  We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system.  Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence.  Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great.  And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice.

Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.  We should do these things.  Unfortunately, they won’t be enough.

While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime.  We’re not going to decriminalize theft or assault or robbery, nor should we.  If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime....

Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly.  Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.”  This is a book about how we can police and punish more effectively.  The sort of proposals that should be welcomed by left and right alike.

Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly.  The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes....

What’s the alternative?  Raise the odds of punishment, and lower the severity.  That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years.  It means exploring new technologies that allow us to put people under “house arrest” of varying intensity.  In the short term, this will mean spending more money and effort on the system.  But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms.

October 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

First big SCOTUS order list has lots of big "cert denied" decisions in big sentencing cases

In prior posts here and here and here, I flagged a couple of commentaries that had flagged Supreme Court cert petitions to watch with the start of a new SCOTUS Term.  A lot of folks have been paying particular attention to two sex offender cases, Karsjens v. Piper (concerning the constitutionality of Minnesota Sex Offender Program), and Snyder v. Does (concerning retroactive application of Michigan's sex offender registry). 

This morning, the Supreme Court released this 75-page order list in which it denied cert on both of these closely-watched cases.  The order list also reveals SCOTUS also denied cert in a number of other cases of likely interest to sentencing fans, such as various cases concerning the application of the Eighth Amendment limit on LWOP juve sentences set out in Graham and Miller.  As detailed in this post last week, the Supreme Court already added a few criminal cases to its docket as it got back to work for the Term.  But none of the new cases it has taken up are likely blockbusters or possibly as consequential as the cases it now has officially decided not to review. 

For a variety of reasons, I am not too surprised by these denials of cert.  Despite my own wishful thinking that the addition of Justice Gorsuch might juice the parts of the docket I find most exciting, I am largely expecting a relatively quiet Term on the sentencing front.  That all said, hope springs eternal, and hope for some exciting grants might be renewed when the fine folks at SCOTUSblog figure out which cases are missing from this new order list and become hot prospects as "relisted" petitions.

October 2, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, October 1, 2017

Interesting look at what prison consultants advise as elites head to prison

This MarketWatch article, headlined "When the rich get sent to prison, they call these wise guys first," provides an interesting little looking into an interesting little segment of the "prison-industrial complex." Here is how the article gets started:

Former congressman Anthony Weiner cried when a judge sentenced him to 21 months in prison last week for sexting with a 15-year-old girl. Prison is tough and most felons have no idea what to expect. For a few thousand dollars, however, high-profile felons like Weiner can hire a “prison consultant” to help smooth the transition to life behind bars.

For non-violent criminals like Weiner and “pharma bro” Martin Shkreli — who’s now behind bars in a Brooklyn jail — prison “is a totally different environment than they’ve ever been, it’s crazy in there,” said Michael Frantz, director of Jail Time Consulting, who served 36 months in a federal facility for tax evasion.

“They come from a world where there’s order,” Frantz said. “They have people under them and tell them what to do. When you get into federal prison, you have no control whatsoever. In the real world, there’s order and rational thinking. In the Bureau of Prisons there’s absolutely no rational thinking.”

Weiner’s attorney didn’t respond to a question on whether he’s using a prison consultant, and neither did the lawyer for Shkreli, who was recently sent to a Brooklyn detention center while he awaits sentencing on fraud charges. But Weiner and Shkreli are just the type of convicts who typically use prison consultants. They’ve already helped the likes of Bernie Madoff and Martha Stewart.

What do these prison preppers do? A combination hand-holder, shoulder-to-cry-on, and red tape slicer, prison consultants prep future inmates for life behind bars, teach them how to make the best use of their time “on the inside,” and can even help inmates shave time off their sentences. Many of the consultants have been to prison themselves and know from personal experience how to navigate the Bureau of Prisons bureaucracy.

Prices for their services range from $500 for advocating for better medical care in prison to $20,000 for comprehensive post-prison consulting to help ex-inmates rebuild their lives by starting new businesses — in fields they’re not legally barred from working in — or writing books.

Marketwatch talked to prison consultants to find out how they would advise Weiner and Shkreli. The best part? Many of these tips work for non-criminals too.

For what it is worth, I think "absolutely no rational thinking" is big part of the reason Anthony Weiner is headed to prison.

October 1, 2017 in Prisons and prisoners, White-collar sentencing | Permalink | Comments (2)

"South Dakota Swaps Lawyers for Tablets in Prisons"

The title of this post is the headline of this Courthouse News Service article that struck me as linguistically and conceptually amusing on a number of levels. Substantively, however, I am not sure anyone should be amused by what the body of the story reports:

Sometime in the next few days, inmates in South Dakota prisons will start counting on tablet computers – not a state-funded, in-prison attorney or paralegal – to help them with their cases.  The South Dakota Department of Corrections did not renew a contract for attorney Delmar “Sonny” Walter and his paralegals, who since the early 2000s have assisted the state’s prison population with research and filing of legal documents ranging from habeas petitions to child support documents.

Corrections secretary Denny Kaemingk told the Sioux Falls Argus Leader the move will save taxpayers money. But one prisoner’s rights attorney has concerns.  “What’s someone who can’t read or write or can’t do so fully effectively or without mental illness supposed to do with a tablet?” said David M. Shapiro, clinical assistant professor of law at Northwestern University’s Roderick MacArthur Justice Center. “It’s a pennywise, pound-foolish approach.”

This past May, the state announced every one South Dakota’s approximately 3,000 inmates would receive a free tablet computer.  This allows the inmates longer phone calls, subscriptions to online movies and music, and text messaging with loved ones. Inmates also now have access to law-references websites such as Westlaw and LexisNexis. It was a change supported by Walter, the on-site attorney, but he’s doubtful the technical upgrade is a substitute for legal insight from professionals.

“The things we did made the institution run smoother,” Walter said, noting his staff did everything to help inmates -- most legal novices unfamiliar with complex documents -- with everything from knowledgeably preparing appeals to making copies to helping inmates with medication requests.  “We helped the inmates get into court in a number of ways, and now they won’t have that stuff.”

In 1999, a state judge ruled the prisons must provide “legal assistance” for inmates.  The program -- which cost the state $276,000 in 2017 -- has never been luxurious.  “In Springfield (the Mike Durfee State Prison) we were basically in a closet,” Walter said. “These inmates had maybe two to four hours a week. They often had to choose between a doctor’s appointment or researching their case.”...

He predicts the state will soon see another access lawsuit. “A book isn’t going to make you a lawyer. These people need legal assistance.”...

In the past year, falling revenue has forced South Dakota to cut back on projects and revise spending goals. In part, providing inmates with tablets was an effort to lower re-offense rates and reduce taxpayers’ burden.  Shapiro, the Northwestern law professor, argues this nickel-and-dime cost-cutting distracts from a bigger problem.  “At the end of the day, America has more people locked up than any other country on earth,” he said in a phone interview. “A reduction in incarceration would lead to genuine savings.”

October 1, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, September 29, 2017

Another look at the realities of more offenders aging and dying in prison

Long-time readers surely recall a number of articles in this space about the aging US prison population. Here is another via the Philadelphia Inquirer under the headline "More people than ever are dying in prison. Their caregivers? Other inmates."  Here is how it gets started:

“The death squad.” Or, “the executioners.” That’s what many inmates used to call the inmate-volunteers who work the Graterford state prison hospice unit, a bleak row of isolation rooms — each one-part hospital room, one-part jail cell— where inmates with terminal illnesses are placed to die.

Then, they saw how the inmates cared for dying men in shifts, undertaking the intimate tasks of feeding, cleaning and comforting them. For many, it is a calling. Over time, attitudes changed, said James, a 51-year-old inmate who volunteers to do this work. “There’s a lot of progress in this place. There is more humanity here now.”

It’s needed, given that far more people are dying in prison than ever before. In Pennsylvania, 483 state inmates have died since January 2015. That’s about 180 deaths in prison each year. From 2005 to 2014, the average was 150 deaths per year.

That increase is a byproduct, officials say, of the extraordinarily fast-growing elderly population in prison. In 2001, there were 1,892 geriatric inmates in Pennsylvania (ages 55 or older). Today, that’s more than tripled to 6,458. The leading causes of death in the state’s prisons are heart disease, cancer and liver disease. Caring for this population is extraordinarily expensive: It’s estimated that elderly inmates cost three to nine times more than young ones. Compassionate release, meanwhile, is granted to just a few inmates each year.

But since 2004, families of dying inmates at Graterford have had the small comfort of knowing they will not die alone. There is just one nurse on staff at the 23-bed infirmary, and visitors are allowed only an hour a day, but volunteers man the hospice on 24-hour vigils, sometimes caring for two or three inmates at once.

A year ago, a statewide memo ordered that all Pennsylvania prisons establish hospice programs, but there’s no set format for those programs to follow, said Annette Kowalewski, who runs the hospice program at Laurel Highlands state prison, which contains a skilled-nursing facility. Staff at five or six institutions have contacted her for guidance.

According to Brie Williams, a professor at University of California-San Francisco who studies geriatric care in prison, some type of hospice care is offered at around 80 prisons nationwide. “Hospices in the correctional setting are a critically needed response to the extraordinarily long sentences and minimum mandatory sentences that were handed down over the past decades,” she said.

September 29, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, September 28, 2017

Yale Law School clinic report looks at "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration"

A helpful reader alerted me to this new report released by The Criminal Justice Clinic at Yale Law School.  This press release from the school's website provides some background and a kind of summary of the report, which carries the title "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration":

A new report highlights opportunities for the State of Connecticut to reduce the high rate of incarceration attributable to its parole revocation process. The report was written by the Samuel Jacobs Criminal Justice Clinic (“CJC”) at Yale Law School.

The report details the findings of a research project that began in the fall of 2015 after Governor Dannel Malloy announced the Second Chance Society initiative.  To support that initiative, CJC agreed to undertake a study of parole revocation in Connecticut to explore ways to reduce incarceration and to facilitate the reintegration of parolees into society....

As part of the CJC study, students and faculty personally observed 49 parole revocation hearings in Connecticut in November 2015.  Shortly after these observations, they reported the following findings to state officials:

  • The Board of Pardons and Paroles (BOPP) revoked parole in 100% of the observed cases.
  • BOPP imposed a prison sanction in 100% of observed cases.
  • Nearly all parolees in the observed cases waived their due process rights in the parole revocation process.
  • No parolee appeared with appointed counsel, even though several parolees seemed clearly to qualify for state-provided counsel under the constitutional standard.
  • The typical procedures at parole revocation hearings made it difficult for parolees to contest disputed facts or to present mitigating evidence. Without counsel, incarcerated parolees did not have a meaningful opportunity to develop evidence in support of their claims.

In 2016, CJC administered a follow-up survey to parolees whose hearings it had observed.  The survey revealed that most parolees did not understand the rights that they had waived during the parole revocation process.  The survey also revealed that 79% of the parolees interviewed had lost jobs as a consequence of parole revocation....

Over the last two years, BOPP has begun to implement reforms to its parole revocation practices in response to the CJC study. In 2017, BOPP asked that CJC present additional recommendations in writing, which led to the release of this report.

September 28, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

SCOTUS grants cert on a bunch of criminal cases, including at least one possibly exciting sentencing case

Over the weekend in this post, I flagged a bunch of interesting criminal cases flagged in this lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court got back in action with its end-of-the-summer "long conference."  Today, via this short order list, the Supreme Court reported out some of the results of its work at the long conference.  Specifically, the court granted certiorari in 11 cases (three of which about military courts are consolidated).  Interestingly, though I did not see any of the cases I have been watching on the "certiorari granted" order list, it seems at least five of the case that do appear on the latest order list involve criminal issues:

16-1027 COLLINS, RYAN A. V. VIRGINIA

16-1371 BYRD, TERRENCE V. UNITED STATES

16-1466 HAYS, KS V. VOGT, MATTHEW JACK D. (N.B.: "Justice Gorsuch took no part in the consideration or decision of this petition.")

16-8255 McCOY, ROBERT L. V. LOUISIANA (N.B.: the "a writ of certiorari [is] limited to Question 1 presented by the petition")

16-9493 ROSALES-MIRELES, FLORENCIO V. UNITED STATES

Based on a too-quick bit of Google searching, it appears that the first two cases above deal with Fourth Amendment car searches, the Vogt case deals with Fifth Amendment procedure, McCoy is a state capital case seemingly dealing with right to counsel issues, and Rosales-Mireles is a federal sentencing appeal!  I am hopeful that SCOTUSblog will soon have their usual terrific coverage of all of today's grants with links to the filings.  I suspect that hard-core sentencing fans will be most interested in the final two cases listed above, but I will need to see the filings before I will know just how excited to get about these new cases on the SCOTUS docket.

Meanwhile, for all the cases in the cert pool being watched by others, we will need to wait until at least Monday morning to know more about their fate.  For those rooting for cert grants, not being on today's order list is not a good sign.  But a lot of cases get relisted after the long conference, and thus there is still a decent chance at least a handful more criminal cases of note will be added to the docket in the coming weeks.

UPDATE Not minutes after I finished this post, I see Amy Howe has this long post reviewing all of today's cert grants, and here is part of her accounting of the criminal cases:

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.... 

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home....

Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;

McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Today’s grants are likely to be argued in either January or February.

September 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

US Sentencing Commission releases big new report on "Federal Alternative-to-Incarceration Court Programs"

ThVRFS1G7AThe US Sentencing Commission has this morning released this 100-page report titled "Federal Alternative-to-Incarceration Court Programs."  Here is part of the report's introduction:

During the three decades that it has been in existence, the United States Sentencing Commission (Commission) repeatedly has considered the important issue of when an alternative to incarceration is an appropriate sentence for certain federal defendants. The original 1987 Guidelines Manual provided for alternative sentencing options such as probation for certain low-level federal offenders, and the Commission thereafter amended the guidelines on several occasions to increase the availability of alternative sentences as sentencing options. Despite these amendments, the rate of alternative sentences imposed in cases governed by the sentencing guidelines has fallen steadily during the past three decades, including after United States v. Booker, and Gall v. United States, which increased federal judges’ discretion to impose alternative sentences. In recent years, the Commission has prioritized the study of alternatives to incarceration as a sentencing option.

Many federal district courts around the country, with the support of the Department of Justice (DOJ), have begun creating specialized court programs to increase the use of alternatives to incarceration for certain types of offenders, most commonly for those with substance use disorders. These programs have developed independently of policy decisions of both the Commission and the Judicial Conference of the United States.  Commentators, including judges who have presided over these court programs, have urged the Commission to amend the Guidelines Manual to encourage such programs and provide the option of a downward departure to a non-incarceration sentence for defendants who successfully participate in them and who otherwise would face imprisonment based on their guideline sentencing ranges.

As part of its recent priority concerning alternatives to incarceration, the Commission has studied these emerging court programs. The Commission’s study has been qualitative rather than quantitative at this juncture because of a lack of available empirical data about the programs.  In late 2016 and early 2017, Commission staff visited five districts with established programs, interviewed program judges and staff, and observed proceedings.  On April 18, 2017, the Commission conducted a public hearing about such specialized federal court programs, at which the Commission received testimony from experts on state “drug courts” and other “problem-solving courts” as well as from federal district judges who have presided over three of the more established alternative-to-incarceration court programs.

This publication summarizes the nature of these emerging federal alternative-to-incarceration court programs and will highlight several legal and social science issues relating to them. Part II defines key terms and concepts, discusses the history of alternative-to-incarceration court programs, which originated in the state courts nearly three decades ago, and then specifically describes the types of specialized federal court programs that have been created in recent years.  Part III discusses legal issues related to the federal court programs, including how they fit within the legal framework created by the Sentencing Reform Act of 1984 (SRA) and modified by the Supreme Court in 2005 in Booker.  Part IV identifies social science issues related to the programs, including issues related to the efficacy and cost-effectiveness of the federal court programs.

Part V concludes by identifying several questions about the federal court programs that policymakers and courts should consider in deciding whether, and if so how, such programs should operate in the federal criminal justice system in the future.

September 28, 2017 in Booker in district courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, September 27, 2017

Should New Jersey be more regularly championed for its profound success in reducing prison populations and crime rates?

New-jersey-clipart-toonvectors-5159-140The question in the title of this post is prompted by this local article, headlined "Why is the N.J. prison population shrinking? (It's not just about less crime...)," which highlights how and how successful the Garden State has been in reducing its prison population.  Here are excerpts from the article:

The big house is getting smaller. Fewer people are going to prison in New Jersey these days and the numbers continue to drop, according to an analysis of state Department of Corrections data over the past five years.

Those incarcerated in New Jersey — including men and women in prison, juveniles in detention, and detainees still in halfway houses — dropped this year to 19,619, from 21,123 in 2013. That marked a decline of more than 15 percent.

In fact, the state's inmate population has fallen more from its peak in the 1990s than any other state in the country, according to The Sentencing Project, a Washington-based criminal justice reform group. Since 1999 — when more than 31,000 people were behind bars in New Jersey — the number of inmates has plunged by more than a third. "New Jersey leads the nation in prison population reduction," said Todd Clear, a prison policy expert at the Rutgers School of Criminal Justice.

Crime has been going down in New Jersey in recent years. But that doesn’t really tell the story of what's happening in the state's prisons, according to Marc Mauer, executive director of The Sentencing Project. "It's not necessarily one shift that can produce a shift of this magnitude," he said, attributing much of it to the creation of the state's drug courts that focus on diverting people from prison, as well as changes in the parole system that make it less likely someone will be put back behind bars for minor technical violations of their parole.

The corrections department data underscores the impact on how the state treats drug crime. The percentage of those serving time for drug crime is down more significantly than for inmates convicted of any other offense.... According to corrections department officials, a five-year phase-in under Gov. Chris Christie of mandatory drug courts for non-violent offenders, which was expanded to all 21 counties across the state, redirected thousands from state prison and into drug treatment programs.

At the same time, they credited the so-called "ban the box" legislation prohibiting employers from discriminating against people with expunged criminal records, as well as accelerating some expungements, increasing the type of convictions that can be expunged and reducing the waiting period to expunge an entire juvenile record, have given some inmates a better opportunity of finding a job and staying out of prison....

Department of Corrections officials said with the decline in inmate population, they have consolidated facilities and closed some units, reducing overtime costs. "This practice allowed us to undertake much-needed renovations in our facilities," said spokesman Matthew Schuman. "In fact, as part of our consolidation program, we closed Mid-State Correctional Facility in June 2014."

Mid-State reopened in April 2017 as the first licensed, clinically driven drug treatment program provided by the NJDOC. At the same time, a similar substance use disorder program for female offenders became operational at Edna Mahan Correctional Facility for Women.

Unfortunately, this new article does not address what has become of crime rates and recidivism rates during this period in which New Jersey has been shrinking its prison population, but I think the data is also encouraging.  Specifically, crime data for New Jersey here and here suggests crime has gone down as much if not more in NJ than elsewhere in the country and the state even seems to be largely avoiding the crime spikes that a number of other regions have seen in the last two years.  And this local article from last years reports that the state's corrections "Chief of Staff Judith Lang ... said New Jersey’s recidivism rate has lowered from 48 percent to 32 percent" thanks in part to state investment in reentry services.

Though outgoing New Jersey Governor Chris Christie will be leaving office with very low approval ratings, the citizens of New Jersey and all those interested in criminal justice reform should praise his efforts in this arena and the broader achievements of all New Jersey policymakers and officials in recent years.  Especially if New Jersey continues to keep crime rates and prison populations low, the state will continue to be an important success story for modern criminal justice reforms that other jurisdictions should aspire to emulate.

September 27, 2017 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments"

Anti-tax icon Grover Norquist has this notable Wall Street Journal commentary under the headline "Conservatives for Criminal Justice Reform: You don’t hear about it much, but 31 mostly red states have reduced both crime and imprisonment." Here is how it starts:

Every so often I’m asked to list the conservative movement’s most important recent accomplishments.  One always ranks near the top: criminal justice reform.

With leadership from Republican governors and legislators and groups such as Right on Crime, conservatives have pushed to rein in runaway prison spending and adopt cost-conscious correctional policies that improve public safety.  Starting 10 years ago in Texas, more than half of all states have now shifted course, changing laws to ensure that violent offenders serve hard time while those who are not a danger are steered toward less expensive alternatives that can help alter the paths of their lives and make communities safer.

Taxpayers benefit.  In 2007 the Pew Charitable Trusts projected that state prisons would grow 14% over five years, costing states $27.5 billion more.  Instead, the reforms have bent the curve.  The state prison population is down 5%.  Between 2010 and 2015, 31 states reduced both crime and imprisonment, proving that fiscal discipline and safe streets can go hand in hand.

September 27, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

Tuesday, September 26, 2017

US Supreme Court, voting 6-3, issues last-minute stay of execution in Georgia

As revealed in this new order and explained in this local article, the "U.S. Supreme Court granted a stay of execution tonight to condemned killer Keith Tharpe, three and a half hours after he was scheduled to be put to death by lethal injection." Here are the basics:

In a 6-3 decision, the court’s justices were apparently concerned about claims that one of Tharpe’s jurors was racist and sentenced Tharpe to death because he was African-American. Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented.

The high court will now decide whether to hear Tharpe’s appeal, and, if it doesn’t, the court said the stay of execution shall terminate automatically. But that will not happen tonight.

Tharpe’s lawyers were overjoyed with the decision. “We’re gratified the court understands this case merits thoughtful consideration outside the press of an execution warrant,” said Brian Kammer, one of Tharpe’s attorneys. “We are extremely thankful that the court has seen fit to consider Mr. Tharpe's claim of juror racial bias in regular order."

Prior related post:

September 26, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Thoughtful new Vox commentaries on modern incarceration and its contexts

Regular readers likely already know that they ought to be regularly reading Vox for its sharp coverage of a number of criminal justice issues.  And this week, there have already been these two must-read pieces:

September 26, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Acting DEA head officially resigns

As reported here by the New York Times, the "acting head of the Drug Enforcement Administration will resign at the end of the week, according to law enforcement officials, who said he had become convinced that President Trump had little respect for the law." Here is more about a not-too-surprising departure:

The official, Chuck Rosenberg, who twice served as chief of staff to the former F.B.I. director James B. Comey and remains a close confidant, had grown disillusioned with Mr. Trump.  The president fired Mr. Comey in May, and then in July told law enforcement officers “please don’t be too nice” when handling crime suspects.

Mr. Rosenberg forcefully rejected Mr. Trump’s comment, sending an email to all D.E.A. employees at the time to tell them that they should not mistreat suspects.  “We must earn and keep the public trust and continue to hold ourselves to the very highest standards,” Mr. Rosenberg wrote in the internal email.  “Ours is an honorable profession and, so, we will always act honorably.”...

Mr. Rosenberg, who was appointed by President Barack Obama in 2015, is a career prosecutor.  Under President George W. Bush, he served as the United States attorney in both southern Texas and eastern Virginia.

In late July, Mr. Rosenberg, told the deputy attorney general, Rod J. Rosenstein, that he did not want to be considered as the permanent administrator of the D.E.A.  Mr. Rosenstein, who wrote a memo that Mr. Trump briefly cited as his rationale for dismissing Mr. Comey, then asked whether Mr. Rosenberg wanted to remain at the Justice Department, and Mr. Rosenberg said he did not.

In a message to D.E.A. employees on Tuesday, Mr. Rosenberg said, “The neighborhoods in which we live are better for your commitment to the rule of law, dedication to the cause of justice and perseverance in the face of adversity.”

“You will continue to do great things,” he added. “I will continue to root for you, now from the sidelines.”

September 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Alliance for Justice assails Third Circuit nominee Stephanos Bibas for his criminal justice work and writings

As revealed in this post from June, I was stoked when sentencing scholar (and my occasional co-author) Stephanos Bibas was nominated by Prez Trump for an open seat on the Third Circuit. But, though Prof Bibas has gotten lots of support from lots of folks across the political aisle, the folks at Alliance for Justice have released this critical new report his record and AFJ President Nan Aron say that in his coming confirmation hearing the "onus is on him to alleviate concerns about his approach to the rights of individuals who might find themselves before him in court."

I surmise that AFJ releases a critical report about every one of the nominees put forward by AFJ, but my professional connections to Prof Bibas and his working in the sentencing arena prompted me to review this particular AFJ report about his work and writings.  This AFJ press release summarizes the report's articulated concerns:

Among other things, AFJ’s report notes:

  • Bibas has written about the treatment of prisoners in ways that are unsettling and raise questions about his respect for their constitutional rights. In a 2012 book, he praises colonial-era punishments such as public whippings that inflict pain and humiliation on convicted persons, suggesting that public shaming is not practiced enough today.  This philosophy regarding punishment would be seriously harmful in a federal judge charged with reviewing countless sentencing decisions that will have enormous and lasting impacts on the lives of real people.  Bibas also argues that prisoners could be forcefully conscripted into the military.

  • In an article, Bibas insisted that while over-incarceration is real, it is not reflective of racial disparities in the justice system or society as a whole as the “liberal” “narrative” maintains.  He also argued that the growth in the prison population was “driven mainly by violent and property crime, not drugs.”

  • Bibas has shown a serious misunderstanding about the nature of drug addiction, having argued that it is not a disease but something that addicts can choose to overcome.

  • Bibas signed an open letter criticizing the University of Pennsylvania’s adoption of new procedures for investigating and resolving sexual assault complaints on campus. The letter made troubling statements suggesting that victims are in part responsible for assaults, and advocated for the university to adopt an adjudicative system for these cases that closely mirrors the criminal justice system. The Supreme Court has discouraged schools, which are supposed to provide safe learning environments for all students, from attempting to replicate criminal investigations and prosecutions on campus.

  • While serving as a prosecutor in the Southern District of New York, Bibas used federal prosecutorial, law enforcement, and court resources to bring charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. On the morning of the trial, he turned over evidence corroborating the defense that records suggest he may have withheld for some time. The cashier was acquitted, and the prosecution faced scorching media criticism.

For a host or reasons, I am disinclined to engage with the particulars of the AFJ report.  But I am inclined to predict that Prof Bibas, based on his past criminal justice work and writings, will be much more inclined to respect criminal defendants' rights than many other past and future judicial nominees.

Prior related post:

September 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 25, 2017

Reviewing the racial bias and other concerns surrounding Georgia's planned execution of Keith Tharpe

CNN has this new article reviewing issues being raised in the run-up a scheduled execution in Georgia.  The article is headlined "Questions of racial bias surround black man's imminent execution," and here are excerpts:

The state of Georgia is set to carry out its second execution of the year on Tuesday, when it plans to put to death Keith Tharpe, who was sentenced in 1991 for murdering his sister-in-law.  But Tharpe, 59, and his attorneys are seeking a stay of execution, based in part on racist comments a juror made after the trial had ended.  Tharpe is black and the now-deceased juror who made the comments was white.

The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted. Rather, they are arguing that his death sentence should be overturned because of juror misconduct.  They say Tharpe's death sentence was the result of a racially biased juror who, in a post-trial interview seven years after Tharpe's conviction and sentencing, used the n-word and wondered "if black people even have souls."

A biased juror, they argue, violates Tharpe's constitutional rights to a fair trial, guaranteed by the Sixth Amendment.  They also argue that the juror lied during jury selection, concealing the fact that he knew the victim's family. Furthermore, the attorneys say Tharpe is intellectually disabled, which would make it illegal for him to be executed under federal law....

At the time of his crime, September 25, 1990, Tharpe and his wife were estranged. Prosecutors said Tharpe stopped his wife and sister-in-law in the road as they drove to work, according to court filings from the federal district court. The documents say he took his sister-in-law, Jacquelin Freeman, to the back of the vehicle and shot her with a shotgun before throwing her into a ditch and shooting her again, killing her. An autopsy showed Freeman had been shot three times.  Prosecutors alleged Tharpe then raped his wife and took her to withdraw money from a credit union, where she was able to call police for help, according to the documents. Three months later, convicted of malice murder and kidnapping, Tharpe was sentenced to death. 

Tharpe's current case centers on the post-conviction testimony of Barney Gattie, a white juror in Tharpe's trial....  Brian Kammer, Tharpe's attorney with the Georgia Resource Center, said Gattie showed in his interview that he "harbored very atrocious, racist views about black people."  Tharpe's lawyers claim Gattie, who is now deceased, used the n-word with the lawyers throughout the interview, in reference to Tharpe and other black people....

Georgia law states that juror testimony cannot be used to impeach the verdict, or render it invalid -- even if it involves racial bias, Kammer said.  At the time Gattie made the statements in question, this rule kept Tharpe's attorneys from being able to use them to prove his death sentence was the result of racial bias.  In Georgia, defendants can only receive a death sentence if the jury reaches the decision unanimously.

But Kammer and his team are relying on some recent United States Supreme Court decisions to back their motion for a stay of execution.  The central one, Kammer told CNN, is Pena-Rodriguez v Colorado.  In March, the US Supreme Court held in a 5-3 vote that laws like Georgia's are invalidated when a juror "makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," Justice Anthony Kennedy wrote in the majority opinion.

Essentially, a juror's racial bias constitutes a violation of a defendant's rights to an impartial jury guaranteed by the Sixth Amendment, and prevents defendants from being able to prove a violation of their constitutional rights.  "A constitutional rule that racial bias in the justice system must be addressed -- including, in some instances, after the verdict has been entered -- is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right," Kennedy said.

Tharpe's request for a stay was denied by the 11th Circuit Court on September 21.  A federal district court denied Tharpe's motion seeking a reopening to federal habeas proceedings on September 5, the day before the state issued a warrant for his execution.

September 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (12)

Lots more notable new reporting and commentary from The Marshall Project

Regular readers surely recall prior times I have flagged the always terrific Marshall Project for producing many great pieces that should be must-reads for sentencing fans.  As I have said before, I rarely have the time or ability to give blog attention to all of the great work done there.  But I could not resist another shout-out post upon seeing in recent days a bunch of pieces with original reporting and commentary that all struck me as particularly blog-worthy (with the last three connected):

September 25, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (5)

Anthony Weiner given 21 months in federal prison after his plea to "transferring obscene material to a minor"

Anthony Weiner was scheduled to be sentenced at 10am this morning in the Southern District of New York federal courtroom, and apparently US District Judge Denise Cote did not need very long to figure out what sentence she thought fitting.  This AP piece provides a blow-by-blow, and here are excerpts:

A prosecutor has urged a judge in New York City to sentence Anthony Weiner to a significant prison sentence to end his “tragic cycle” of sexting.

Assistant U.S. Attorney Amanda Kramer told a Manhattan federal court judge Tuesday that Weiner on three occasions in 2016 asked a 15-year-old girl to display her naked body online and to perform for him. The prosecutor noted that sexting had already ruined Weiner’s congressional career and spoiled his run for mayor of New York City before he began interacting with the teenager. Kramer said Weiner should go to prison for between 21 months and 27 months....

Anthony Weiner called his crime his “rock bottom” as he spoke just before a judge in New York City sentences him for his sexting crime. Weiner fought back tears and occasionally cried Monday as he read from a written statement on a page he held in front of him in Manhattan federal court. He said he was “a very sick man for a very long time.” He asked to be spared from prison.

The Democrat’s lawyer, Arlo Devlin-Brown, had asked that Weiner serve no prison time....

Anthony Weiner has been sentenced to 21 months in prison for sexting with a 15-year-old girl in a case that may have cost Hillary Clinton’s the presidency.... Anthony Weiner must report to prison by Nov. 6 to begin serving his 21-month sentence for sexting with a 15-year-old girl.

As his sentence was announced Monday, the former Democratic congressman from New York dropped his head into his hand and wept, then stared straight ahead.  After the hearing ended and Judge Denise Cote left the bench, he sat in his seat for several minutes, continuing to cry.  Weiner was also fined $10,000.  After his sentence is served, he must undergo internet monitoring and must have no contact with his victim. He must also enroll in a sex-offender treatment program.  

Before announcing the sentence, Cote said there was “no evidence of deviant interest in teenagers or minors” on Weiner’s part.  She also said he is finally receiving effective treatment for what she said has been described as “sexual hyperactivity.”

 Prior related posts:

September 25, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Official FBI crime data confirms that 2016 saw another notable increase in violent crime and further reductions in property crime

Early markers suggested that violent crime was increasing in 2016 in the United States, after having increased in 2015 following record low violent crime rates in 2014.  This official FBI press release provides these basics:

The estimated number of violent crimes in the nation increased for the second straight year, rising 4.1 percent in 2016 when compared with 2015 data, according to FBI figures released today. Property crimes dropped 1.3 percent, marking the 14th consecutive year the collective estimates for these offenses declined.

The 2016 statistics show the estimated rate of violent crime was 386.3 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,450.7 offenses per 100,000 inhabitants.  The violent crime rate rose 3.4 percent compared with the 2015 rate, and the property crime rate declined 2.0 percent.

These and additional data are presented in the 2016 edition of the FBI’s annual report Crime in the United States.  This publication 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.  The UCR Program streamlined the 2016 edition by reducing the number of tables from 81 to 29, but still presented the major topics, such as offenses known, clearances, and persons arrested.  Limited federal crime, human trafficking, and cargo theft data are also included....

Of the 18,481 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,782 submitted

  • In 2016, there were an estimated 1,248,185 violent crimes. Murder and nonnegligent manslaughter offenses increased 8.6 percent when compared with estimates from 2015.  Aggravated assault and rape (legacy definition) offenses increased 5.1 percent and 4.9 percent, respectively, and robbery increased 1.2 percent.
  • Nationwide, there were an estimated 7,919,035 property crimes. The estimated numbers for two of the three property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 4.6 percent, larceny-thefts declined 1.5 percent, but motor vehicle thefts rose 7.4 percent.
As readers surely know, rising crime rates always provide fodder for politicians and others to championing tougher sentencing regimes, and we have heard both Prez Trump and Attorney General Sessions stress rising violent crime as a justification for certain policies. I suspect we may soon see these new FBI data appearing in speeches by DOJ officials and others, though folks eager to push back on concerns about a modern new crime wave have already been talking up the recent Brennan Center analysis discussed here suggesting crime rates may be stabilizing or declining in 2017.

At the risk of seeming a bit too Pollyannaish, I think the FBI report that property crimes in 2016 dropped for the 14th consecutive year is a big piece of the national crime story very much worth celebrating. Though violent crimes rates understandably get the most attention, property crimes impact the most people — there are, roughly speaking, more than five property crimes for every violent crime — so drops property crimes can end up meaning a lot more persons and families experienced a crime-free year even when there are spikes in violent crime.

I expect various policy folks will be mining this latest FBI data for crime-specific and region-specific stories. I will try to cover some of the coming coverage and analysis in coming posts.

September 25, 2017 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (6)

Sunday, September 24, 2017

Terrific review of SCOTUS petitions to watch from folks at In Justice Today

Da78a743-cb79-4af1-8054-a3a3ed3fd279

I have previously flagged In Justice Today, a publication of Harvard Law School’s Fair Punishment Project, for its copious coverage of a range of criminal justice issues.  Today, I am flagging this extraordinary lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court gets back in action with this "long conference" this week.  Here is the start and just a small part of this very helpful (and link-filled) review of criminal cases that could make their way to the SCOTUS merits docket:

Starting on Monday, the Court has dozens of criminal justice related certiorari petitions to consider. Here are the ten petitions we’re following closely, which cover issues including civil commitment, sex offender registries, non-unanimous jury verdicts, death in prison sentences for juveniles, the death penalty, prosecutorial misconduct, Double Jeopardy protections, and solitary confinement...

Karsjens v. Piper.  On September 25, the U.S. Supreme Court will consider a class challenge to Minnesota's controversial civil commitment regime, the Minnesota Sex Offender Program....

Snyder v. Doe. Over the past decade, Michigan has created one of the most punitive registry schemes in America....  The State of Michigan filed a petition seeking review of the Sixth Circuit’s legal determination that the retroactive application of the sex offender registration laws constituted ex post facto punishment.

Lambert v. Louisiana. In 48 states, juries in criminal cases must return unanimous verdicts. Louisiana and Oregon are the only exceptions; both states permit convictions when only 10 of 12 jurors find the defendant guilty....  Even though the non-unanimity approach only prevails in two jurisdictions, the case arrives at the Court with significant momentum....

Johnson v. Idaho. This term, the Court will have the opportunity to address the question left open in Miller: whether “the Eighth Amendment requires a categorical bar on life without parole for juveniles.” 567 U.S. at 469. In Johnson v. Idaho, the petitioner, Sarah Johnson, challenges the constitutionality of juvenile life-without-parole (JLWOP)....

Ohio v. Moore. In Ohio v. Moore, the State of Ohio is challenging the Ohio Supreme Court’s conclusion that Graham’s prohibition on life-without-parole sentences for juveniles who commit non-homicide offenses also forecloses a term-of-years prison sentence, imposed for multiple non-homicide crimes, that exceeds the juvenile’s life expectancy....

Three other pending petitions — Willbanks v. Missouri Department of Corrections, Garza v. Nebraska, and Castaneda v. Nebraska — present essentially the same question, albeit from the opposite posture. In each, the petitioner challenged the constitutionality of his lengthy aggregate term-of-years sentence, imposed consecutively for several different felony offenses....

Hidalgo v. Arizona. Abel Daniel Hidalgo has asked the Court to consider the constitutionality of Arizona’s death penalty scheme, both in light of its failure to meaningfully narrow the class of murders that are death-eligible and because evolving standards of decency show that, as a categorical matter, the death penalty is unconstitutional....

Farnan v. Walker asks the Court to resolve questions about qualified immunity in the context of prison officials making determinations that a prisoner should be placed in solitary confinement....

September 24, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

On eve of federal sentencing, any final predictions (or desires) for Anthony Weiner's punishment for underage sexting?

As previewed in prior posts linked below and as set up in this new AP piece, the next chapter (and I fear not the last) in the sordid sorry story of Anthony Weiner will play out tomorrow in a federal court in New York.  Here are the basics:

It seemed as if Anthony Weiner had hit rock bottom when he resigned from Congress in 2011. "Bye-bye, pervert!" one heckler shouted as the Democrat quit amid revelations that he had sent graphic pictures of himself to women on social media. Time has shown his self-destructive drama had only just begun.

Weiner, 53, is set to be sentenced Monday for sending obscene material to a 15-year-old girl in a case that may have also have played a role in costing Hillary Clinton — former boss of Weiner's wife, Huma Abedin — the presidential election.

Federal prosecutors have asked for a sentence of slightly more than two years behind bars because of the seriousness of the crime, in which Weiner sent adult porn to the girl and got her to take her clothes off for him on Skype. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger," prosecutors wrote to the judge. "Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.'"

But Weiner's attorneys contend he is a changed man who has finally learned his lesson, calling his compulsive sexting a "deep sickness" best treated without time behind bars. The memo also suggested Weiner himself was a victim of the scandal, saying the North Carolina high school student initiated contact with him because she "hoped somehow to influence the U.S. presidential election" and write a tell-all book.

I have just had a chance to review this short sentencing memo that the government filed a few days ago. I found remarkable both the stupidity of Weiner's decision to "sext" with in an obviously underage girl, as well as the government's conclusion that applicable guideline calculations produce "offense level of 33 [meaning] the resulting Guidelines range would be 135 to 168 months’ imprisonment, but for the statutory maximum of 120 months’ imprisonment."  Luckily for Weiner, the "the Government agreed that a sentence within the range of 21 to 27 months’ imprisonment (which would be the applicable Guidelines range without application of the cross-references) would be fair and appropriate under the specific circumstances of this case."  And the Government makes this assertion in support of a prison sentence in that range: "Weiner’s demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation. On this record, a custodial sentence is necessary to truly effect specific deterrence and prevent the defendant from committing this crime in the future."

Meanwhile, in his lengthy sentencing memo includes, in its words, "Anthony’s own deeply personal meditation to the Court on sickness and recovery (Exhibit 1 to this submission) that speaks most powerfully to his progress."  It also asserts, I think accurately, that Weiner's "wrongful conduct is on orders of magnitude less egregious than any case involving sexually explicit communications with a teenager that has ever been prosecuted in this district" and that "factors the Court must consider under 18 U.S.C. § 3553(a) — in isolation and taken together — demonstrate that a sentence of imprisonment is not required here and would result in punishment greater than necessary to achieve the goals of sentencing."

So, dear reader, what do you expect Anthony Weiner will get at sentencing?  I tend predict a "split the difference" outcome in cases like this, so I would be inclined to expect a sentence of a year and a day for him.  Something even a bit shorter would not surprise me, and I would actually be surprised if Weiner got anything more than 21 months.  In the end, at least for me, I have a hard time viewing Weiner's extraordinary stupidity as the involving the kind of evil or danger that really justifies a long federal prison term. 

Prior related posts:

September 24, 2017 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Saturday, September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6)

Friday, September 22, 2017

Discussing opioid epidemic, AG Sessions says he is "convinced this is a winnable war"

I have never been too keen on using war rhetoric to describe any activities other than actual war, and I was struck by the phrase quoted in the title of this post appearing toward the end of Attorney General Jeff Sessions' latest speech about the opioid epidemic.  Here is an excerpt from the close of the speech as prepared for delivery to law enforcement in Harrisburg, Pennsylvania:

[T]o help fight the overprescribing of opioid painkillers, I announced last month that we will allocate new resources to find and prosecute the fraudsters who help flood our streets with drugs.

The first new resource is a data analytics program at the Department called the Opioid Fraud and Abuse Detection Unit. This team will help us find the tell-tale signs of opioid-related health care fraud by identifying statistical outliers. Fraudsters might lie, but the numbers don’t.

The second is that I’ve assigned 12 experienced prosecutors to focus solely on investigating and prosecuting opioid-related health care fraud cases in a dozen “hot-spot” locations around the country -- places where they are especially needed. And one of those will be in Western Pennsylvania.

And, today, I am announcing that we will be awarding nearly $20 million in federal grants to help law enforcement and public health agencies address prescription drug and opioid abuse. This is an urgent problem and we are making it a top priority. I believe that these new resources and new efforts will make a difference, bring more criminals to justice, and ultimately save lives.

And I’m convinced this is a winnable war.

But in order to end this crisis, we must work together. Eighty-five percent of all law enforcement officers serve at the state and local level, and your work is essential to our success. Strengthening partnerships between law enforcement officers at all levels is a central theme of my tenure at the DOJ, and I hope you will help me do that.  Each of you has a difficult job, but it is a job worth doing, and a job that your communities are depending upon. And you can know this: you have our thanks, and we have your back.

September 22, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

"Legal vs. Factual Normative Questions & the True Scope of Ring"

The title of this post is the title of this new paper authored by Emad Atiq available via SSRN. Here is the abstract:

When is a normative question a question of law rather than a question of fact?  The short answer, based on common law and constitutional rulings, is: it depends.  For example, if the question concerns the fairness of contractual terms, it is a question of law.  If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact.  If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court’s seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.

This Article clarifies a principle implicit in the settled classifications.  I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent.  Convention-dependent normative questions, or those that turn essentially on facts about conventions (roughly, what we do around here) are reasonably classified as questions of law.  By contrast, convention-independent normative questions, which turn primarily on fundamental moral norms, are properly classified as questions of fact.  This principle, echoed in recent holdings, clarifies law/fact classifications in such diverse areas as torts, contracts, First Amendment law and criminal procedure.

The principle also promises to resolve a looming constitutional controversy.  In Ring v Arizona, the Supreme Court held that all factual findings that increase a capital defendant’s sentence must be decided by the jury under the 6th Amendment.  Two recent denials of cert. suggest that members of the Court wish to revisit, in light of Ring, the constitutionality of judges deciding whether a criminal defendant deserves the death penalty.  Applying the principle to Ring, I argue that the question of death-deservingness is a convention-independent normative question, and for that reason should be deemed a factual question for the jury.

September 22, 2017 in Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide.  After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....

At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment.  Some residents she knew and worked with, others she did not.  She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.

At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements.  The state recommended 42 years incarceration.  Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.

After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property.  The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....

Appellant was 55 years old at the time of her sentencing....

We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing....  A sentence of 65 is plainly excessive.  It can be affirmatively stated that a 65 year sentence is a life sentence for appellant.  Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.

The sentence is an emotional response to very serious and reprehensible conduct.  However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.  The sentence imposed here does not do so.  It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively.  It runs the risk of lessening public respect for the judicial system.  The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness.  We therefore find by clear and convincing evidence that the record does not support the sentence.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration.  Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)