Tuesday, September 18, 2018

The latest argument for "overhauling the [DEA], or even getting rid of it entirely."

Leo Beletsky and Jeremiah Goulka has this new New York Times commentary under the headline "The Federal Agency That Fuels the Opioid Crisis: The Drug Enforcement Administration has proved itself incompetent for decades."  Here is how it starts and ends:

Every day, nearly 200 people across the country die from drug overdoses.  Opioids have been the primary driver of this calamity: first as prescription painkillers, then heroin and, more recently, illicitly manufactured fentanyl.  The death toll has risen steadily over the past two decades.

The Drug Enforcement Administration, the agency that most directly oversees access to opioids, deserves much of the blame for these deaths.  Because of its incompetence, the opioid crisis has gone from bad to worse.  The solution: overhauling the agency, or even getting rid of it entirely.

The problem begins with poor design.  A brainchild of Richard Nixon’s “war on drugs,” the agency sought to cut off supplies of drugs on the black market, here and abroad. But in passing the Controlled Substances Act of 1970, Congress also gave the agency broad authority over how prescription opioids and other controlled substances were classified, produced and distributed.  The agency was supposed to curb problematic drug use, but failed to do so because its tactics were never informed by public health or addiction science.

Despite the investment of hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees, the D.E.A.’s track record is abysmal. The agency has been unable to balance legitimate access to and control of prescription drugs.  The widespread over-reliance on opioids, along with benzodiazepines, amphetamines and other scheduled medications, has created a booming black market.

The agency’s enforcement strategies, and the support it has lent to local and state police departments, have also fueled abusive police tactics including dangerous no-knock-raids and ethnic profiling of drivers.  It has eroded civil liberties through the expansion of warrantless surveillance, and overseen arbitrary seizures of billions of dollars of private property without any clear connection to drug-related crimes.  These actions have disproportionately targeted people of color, contributing to disparities in mass incarceration, confiscated property, and collective trauma....

We urgently need to rethink how our nation regulates drugs.  What should our goals be?  How can we design institutions and performance metrics to achieve them?

The answers lie at the local and state levels.  In Rhode Island, opioid overdoses are declining because people behind bars have access to effective treatment. Massachusetts has deployed drop-in centers offering treatment, naloxone and other services.  San Francisco and Seattle are planning to open safe consumption spaces which show tremendous promise as a tool to reduce overdose deaths and other drug-related harm.  But the D.E.A. and its institutional parent, the Justice Department, stand in the way of some of these experiments.

We ought to reinvent the Drug Enforcement Administration. Considering its lack of public health and health care orientation, the agency’s regulatory authority over the pharmaceutical supply could be transferred to a strengthened and independent Food and Drug Administration, while the regulation of medical and pharmacy practice can be ceded to the states.  Parts of the D.E.A.’s law enforcement mandate should be transferred to the F.B.I., delegated back to the local or state, or eliminated.  A significant portion of the D.E.A.’s budget should be reinvested in lifesaving measures like access to high-quality treatment.

The Drug Enforcement Administration has had over 40 years to win the war on drugs.  Instead its tactics have fueled the opioid crisis.  To finally make a dent in this national emergency, we need to rethink the agency from the bottom up.

Perhaps unsurprisingly, the suggestion to consider abolishing DEA is not novel. A quick google search turned up these other recent like-minded commentary (among others):

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Previewing the two capital punishment administration cases before SCOTUS this fall

Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:

Madison v. Alabamato be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...

[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.” 

Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.

In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.

He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....

Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation.  The Eighth Circuit said that he did not prove the gas chamber would be better.  The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly.  A trial court could compare the two descriptions and reach its own conclusion about relative agony.  Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....

The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.

The court seems likely to be hostile to prisoners’ claims, however.  In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”

September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis"

The title of this post is the title of this exciting event taking place at The Ohio State University Moritz College of Law in Columbus, Ohio at the end of next week. OSU's newly established Drug Enforcement and Policy Center (DEPC) is co-hosting this two-day gathering, and here is the conference description from the full conference agenda:

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, September 17, 2018

SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

Guest-postsI am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.  

September 17, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10)

In this post last year following the initial indictment of Paul Manafort in DC District Court on 12 federal criminal counts, I speculated based on the amount of money allegedly involved that Manafort's guideline range, the "starting point and the initial benchmark" for his sentencing, would surely be 10+ years in federal prison.  I have just now had a chance to review a copy of Manafort's plea agreement (first discussed here), and I am intrigued to see that it confirms my (too quick) initial guideline assessment. 

The full Manafort plea agreement is available at this link, and here is the final guideline range assessment: "Based upon the total offense level and the estimated criminal history category set forth above, the Office calculates your client's estimated Sentencing Guidelines range is 210 months to 262 months' imprisonment."  But, of course, while the guidelines call for a range of 17.5+ years of imprisonment for Manafort, he is only in this agreement pleading guilty to two conspiracy counts that each carry a maximum sentence of five years in prison.  So his prison sentence for the DC case is functionally capped at 10 years (but he could get more, I believe, at his sentencing in his Virginia case where he was convicted on 8 counts following a full trial).

The reality that his guideline range is 17.5+ years but his sentence is functionally capped t 10 years makes this subsequent (boiler plate?) sentence in the Manafort plea agreement intriguing: "Based upon the information known to the Government at the time of the signing of this Agreement, the parties further agree that a sentence within the Estimated Guidelines Range (or below) would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C. 3553(a), should such a sentence be subject to appellate review notwithstanding the appeal waiver provided below."  

Some prior related posts:

September 17, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (0)

"What Should the Senate Do With Brett Kavanaugh?"

The title of this post is the title of this new Politico piece which has answers/comments from a number of legal academics.  This topic is one surely to roil the legal world this coming week, and the Politico piece sets up why:

In a dramatic turn, Christine Blasey Ford, a professor at Palo Alto University, is accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when they were in high school in suburban Maryland.  He has categorically denied the allegation, and Republicans are indicating they intend to move ahead with a confirmation vote scheduled for later this week.  Democrats, along with several GOP senators — Jeff Flake of Arizona and Bob Corker of Tennessee — are calling for a pause while the Senate investigates Ford’s story.

I find useful the comment from Ilya Somin to frame some of the criminal law and punishment issues now taking shape as the future of the Supreme Court unfolds.  Here is part of his answer to the question above:

The Judiciary Committee should investigate the matter, and potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake.  Given that the alleged events in question occurred over 35 years ago, when Kavanaugh was 17 and the accuser 15, getting at the truth may be very difficult, or even impossible.  But the committee should at least try.

What should the standard of proof be?  A Supreme Court confirmation hearing is very different from a criminal trial, where guilt must be proven beyond a reasonable doubt. Denying a person a lifetime position of vast power on the nation’s highest court is not the same thing as taking away his or her liberty.  It is reasonable to set a lower threshold for the former than the latter.

At the same time, it would be a mistake to put nominees in the position of having to definitively prove that accusations leveled against them are false.  If that becomes the norm, virtually any nomination could be derailed by unsubstantiated accusations concerning alleged wrongdoing that occurred decades ago.  I would thus tentatively suggest that the right standard is that of preponderance of evidence.  If the evidence indicates that it is more likely than not that a Supreme Court nominee is guilty of serious wrongdoing, that should be sufficient to reject the nomination.

There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor.  But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered.  Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.

The situation may change radically if other women come forward with plausible accusations of sexual assault or harassment.  Regardless, fair-minded observers should keep an open mind and should encourage the Senate to conduct as unbiased an investigation as possible.  Sadly, that may be too much to expect in this era of poisonous partisan bias.

September 17, 2018 in Who Sentences | Permalink | Comments (4)

Sunday, September 16, 2018

Making the case for a bill to end juve LWOP in the federal system

Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:

As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well.  And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children.  The United States is the only country known to impose life without the possibility of parole on people under the age of 18.

Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system.  Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....

Imposing excessive sentences on children ignores what adolescent development research has documented.  And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children.  The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature.  Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.

Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison.  They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance.  HR 6011 holds children accountable while providing a reason to pursue self-betterment.  It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....

We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system.  Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.

September 16, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

"A Defense of Modern Risk-Based Sentencing"

The title of this post is the title of this new paper authored by Christopher Slobogin now available via SSRN. Here is its abstract:

In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public.  In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk.  This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use.  It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.

Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing.  More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought.  The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.

September 16, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 15, 2018

"A Reparative Approach to Parole-Release Decisions"

The title of this post is the title of this paper authored by Kristen Bell recently posted to SSRN. Here is its abstract:

Scholars have argued for enhanced procedural protections at parole hearings, but for the most part without a focus on what substantive criteria ought to guide parole-release decisions.  I undertake this normative project, first describing the approach to parole-release decision criteria from the perspective of four standard theories of punishment: retributive theory, deterrence theory, rehabilitation theory, and communicative theory.  I argue that each of the respective criteria flowing from these theories of punishment is morally objectionable on two grounds: failure to respect the agency of prisoners, and failure to take seriously the limits of our knowledge.  After setting forth these theories and the objections to which they are subject, I turn to draw lessons from how California’s parole-release system functions in practice.

Drawing on both the theoretical and practical perspectives on parole-release criteria, I argue in favor of a fundamental change.  I propose a “reparative approach” that builds on aspects of restorative justice and takes seriously respect for the moral agency of prisoners, victims, and the broader political community.  On this approach, people directly affected by the crime join with others at the outset of a prisoner’s sentence to deliberate and decide upon reasonably achievable criteria that the prisoner would need to meet in order to be released.  At the end of the prisoner’s judicially prescribed period of incarceration, the release decision would then be a ministerial determination of whether the prisoner has in fact met the criteria that were decided upon at the outset.  I leave for future work the question of whether and how such a policy could be implemented in the context of the contemporary American criminal justice system.

September 15, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Reviewing the continued ugly realities of the application of the Armed Career Criminal Act

Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act.  The piece is headlined in full "Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA.  The ruling found part of the act to be unconstitutionally vague — it wasn’t clear what qualified a defendant as a “career criminal.” The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting.  Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions.  Florida had 61; Missouri had 29 and Tennessee had 26.  Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.  “One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences.  According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black.  Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. “You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing.  “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

September 15, 2018 in Data on sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3)

Friday, September 14, 2018

Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions

Politico has this extended article with some of the details of the plea deal completed today between the federal government and Paul Manafort.  Here are excerpts with an emphasis, of course, on sentencing particulars:

President Donald Trump's former campaign chairman Paul Manafort has agreed to cooperate with special counsel Robert Mueller under a plea agreement revealed Friday. Manafort appeared in a Washington, D.C., courtroom Friday morning, looking relaxed in a suit and purple tie, to formally announce the deal.

The deal dismisses deadlocked charges against Manafort from an earlier trial, but only after "successful cooperation” with Mueller’s probe into Russian election interference and whether the Trump campaign coordinated with Moscow on its efforts. Later, U.S. District Court Judge Amy Berman Jackson said Manafort is agreeing to "cooperate fully and truthfully" with the investigation.

The agreement also calls for a 10-year cap on how long Manafort will be sent to prison, and for Manafort to serve time from his separate Virginia and Washington cases concurrently.  But it will not release Manafort from jail, where he has been held since Mueller's team added witness tampering charges during the run-up to the longtime lobbyist's trial.

Manafort addressed Jackson in a soft voice, saying “I do” and “I understand” as she asked him whether he understood what rights he’s giving up. “Has anybody forced you, coerced you or threatened you in any way?” she asked later. “No,” Manafort replied, in a barely audible voice. A deputy marshal stood directly behind Manafort, a reminder that he remains in custody.

Legal experts quickly spun the deal as a win for all the parties involved. Manafort gets a potentially shorter sentence and lessens his legal bills. Trump avoids several weeks of bad headlines ahead of the midterm elections about his corrupt former campaign aide. And Mueller — faced with Trump's constant claims that his probe is a witch hunt — gets to show yet again that his charges are not fabricated and can now divert resources to other elements of his Russia probe....

Trump’s personal attorney Rudy Giuliani insisted the president and his lawyers were not concerned about Manafort cutting a deal. "Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign," he said in a statement Friday. "The reason: the President did nothing wrong."

White House press secretary Sarah Huckabee Sanders echoed those remarks in her own statement. "This had absolutely nothing to do with the President or his victorious 2016 Presidential campaign," she said. "It is totally unrelated.”

Prosecutors signaled the pending deal Friday morning, filing a new slimmed-down set of charges against Manafort, reining in the felony counts pending against him in D.C. from seven to just two: conspiracy against the U.S. and conspiracy to obstruct justice....

Last month, a jury in Alexandria, Virginia, convicted Manafort on eight felony charges in a tax-and-bank-fraud case also prosecuted by Mueller’s team. The jury deadlocked on 10 other counts, but a verdict form said the jurors were split, 11-1, in favor of conviction on those charges.

Many Trump aides and advisers have said they believe the president is likely to grant Manafort a pardon on all the charges, which Trump has suggested amounted to prosecutorial overkill aimed at persuading Manafort to implicate Trump in wrongdoing in connection with the ongoing Russian investigation.

The charges filed Friday morning came in a criminal information replacing the current indictment in the Washington-based case against Manafort.  The new charges mean that prosecutors have agreed to drop five counts, including money laundering, failing to register as a foreign agent and making false statements. Manafort admitted to those allegations as part of the umbrella conspiracy-against-the-U.S. charge, but the individual charges and the potential prison time they carry are being dismissed.

Weissmann said Manafort is admitting to all of the bank-fraud charges from the Virginia case. While that means Manafort won’t face another trial over those federal charges, the admission could be critical to the issue of follow-up state charges, since bank fraud can typically be charged at the state and federal level.

Without seeing this plea agreement, it is unclear to me whether Manafort now has his sentencing exposure capped at 10 years for all of his convictions or just for those related to the second round of DC charges to which he today pleaded guilty.   I presume the latter, since I am not sure a DC-based plea deal could bind the sentencing discretion of the Virginia-based judge who will be sentencing Manafort on the charges which resulted in jury convictions last month.  The plea agreement could include, however, a representation by federal prosecutors that they will not seek a sentence longer than 10 years in the other part of the case (though I doubt it does).

Of course, the sentencing particulars could become academic if (when?) Prez Trump were to grant Manafort a pardon (which he could do at any time).  As of this writing, I am inclined to predict that Prez Trump will commute Manafort's sentence to reduce how long he spends in prison (rather than grant a full pardon), and do so sometime after the mid-term elections.  We might call this the "Libby treatment" as this is how Prez George Bush used his clemency powers to help our Scotter Libby after his perjury conviction but before he was sent to the federal penitentiary.  (And if Prez Trump was clever and savvy in this arena, he could and would include a commutation for Manafort within a list of dozens or hundreds of other commutations of "regular" offenders.)

September 14, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

"Laboratories of Democracy: Drug Policy In The United States"

The title of this post is the title of this exciting event taking place in Washington DC later this month that I have had the honor of helping to plan.  Here is the event's description:

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event (which will include a panel discussion on the opioid crisis and a panel discussion on marijuana reform) are available here and here.  

September 14, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 13, 2018

"Can We Downsize Our Prisons and Jails Without Compromising Public Safety? Findings from California's Prop 47"

The title of this post is the title of this new article in Criminology & Public Policy authored by Bradley Bartos and Charis Kubrin. Here is its abstract:

Research Summary

Our study represents the first effort to evaluate systematically Proposition 47's (Prop 47's) impact on California's crime rates.  With a state‐level panel containing violent and property offenses from 1970 through 2015, we employ a synthetic control group design to approximate California's crime rates had Prop 47 not been enacted.  Our findings suggest that Prop 47 had no effect on homicide, rape, aggravated assault, robbery, or burglary.  Larceny and motor vehicle thefts, however, seem to have increased moderately after Prop 47, but these results were both sensitive to alternative specifications of our synthetic control group and small enough that placebo testing cannot rule out spuriousness.

Policy Implications

As the United States engages in renewed debates regarding the scale and cost of its incarcerated population, California stands at the forefront of criminal justice reform.  Although California reduced its prison population by 13,000 through Prop 47, critics argue anecdotally that the measure is responsible for recent crime upticks across the state.  We find little empirical support for these claims. Thus, our findings suggest that California can downsize its prisons and jails without compromising public safety.

The authored of this research also have this new commentary in Governing headlined "The Myth That Crime Rises as Prisons Shrink: California's dramatic reduction in its prison populations hasn't compromised public safety." Here is an excerpt:

Approved by the voters in 2014, Prop 47 was controversial from the start. It downgraded the lowest-level non-violent drug and petty-theft crimes from felonies to misdemeanors. Critics warned that the measure would embolden would-be criminals as felony arrests throughout the state plummeted.  After Prop 47 went into effect in 2014, lowering prison populations by 13,000, that controversy only escalated.  Soon law-enforcement officials were calling for the measure to be repealed.  They blamed rising crime rates on Prop 47.

But the science doesn't support the assertion that Prop 47 is to blame. We recently published a study that was the first effort to systematically evaluate Prop 47's impact on crime in California.  Our research found that the proposition had no appreciable impact on crime in the year following its enactment.

September 13, 2018 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (2)

Various federal, state and local perspectives on the latest fronts in the latest battles of the never-ending drug war

As noted in this prior post, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of programming and resources already assembled on the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment" or just Issue 1.  In particular today, Thursday, September 13 at 12noon, starts a series five public panels about Issue 1 under the title Ballot Insights (and DEPC has also created a Resources Page for Issue 1 and Commentary Page on Issue 1).  I find Issue 1 fascinating because the players involved and perspectives shared on drug enforcement and drug policy amidst a state-wide direct democracy campaign is already proving remarkable (e.g., Ohio judges have been very vocal so far fiercely opposing Issue 1's drug sentencing reforms). 

Meanwhile, this week also brought an interesting local perspective (mostly from Ohio) on another front of the drug war in the form of this very lengthy piece by Jack Shuler in The New Republic titled "Overdose and Punishment." The sub title of the piece highlights its themes: "When Chad Baker died from a lethal combination of cocaine and heroin, prosecutors charged Tommy Kosto, his friend and fellow drug user, with killing him — a tactic from the Reagan-era war on drugs that is gaining popularity around the country and making today's opioid crisis even worse."

Providing yet another perspective on these matters is Attorney General Jeff Sessions, who yesterday delivered this speech to the National Narcotics Officers' Association’s Coalition Drug Enforcement Forum.  Those who regularly read the AG's speeches will find a lot in this latest speech familiar, but I still though it useful to reprint some of his discussion of the drug war "surge" now on-going at the federal level:

[I]n the districts where drug deaths are the highest, we are now vigorously prosecuting synthetic opioid trafficking cases, even when the amount is small. It’s called Operation Synthetic Opioid Surge — or S.O.S.

We are in a desperate fight to curtail the availability and spread of this killer drug. Synthetic opioids are so strong that there is no such thing as a small case. Three milligrams of fentanyl can be fatal. That’s equivalent to a pinch of salt. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

In Manatee County, Florida, in partnership with the Sheriff, we tried this strategy and it worked. This past January, they had half the number of overdose deaths as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdose calls a day to an average of one a day. Those are promising results. We want to replicate those results in the places that have been hardest hit.

And so I have also sent 10 more prosecutors to help implement this strategy in ten districts where drug deaths are especially high. And that is in addition to the 12 prosecutors I sent to prosecute opioid fraud in drug “hot spot districts.” To help them do that, I have begun a new data analytics program at the Department called the Opioid Fraud and Abuse Detection Unit to use data to find opioid-related health care fraud....

I have also sent more than 300 new federal prosecutors to our U.S. Attorneys offices across America. This is the largest surge in prosecutors in decades. You can be sure drugs, gangs, and related violence will be a priority for them.

September 13, 2018 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, September 12, 2018

As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review?

The question in the title of this post is prompted in part by a couple of recent reasonableness rulings from the Sixth and Tenth Circuits that seemed noteworthy: in US v. Heard, No. 17-3062 (6th Cir. Sept. 11, 2018) (available here), a split Sixth Circuit panel upholds an above-guideline sentences over a spirited dissent in firearm cases; in US v. Staples, No. 17-2068 (10th Cir. Aug 27, 2018)  (available here), a unanimous Tenth Circuit panel reverses a below-guideline sentences in a fraud case.  These decisions reflect one feature of nearly all criminal appeals, namely that the government wins and the defendant loses.  But I was inspired to pose the question in the title of this post because these these decisions also reinforce my sense that, even 13 years into the post-Booker world, there is still very little jurisprudential substance to substantive reasonableness review.  These decisions represent data points, but not much more.

In this post some months ago, I provided a string cite of commentary  documenting the mess that reasonableness review has become in the circuits.   I will provide this list again in part because it support my belief that federal sentencing law and practice would benefit significantly from the Supreme Court's further engagement with reasonableness review.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

As long-time readers know, I used to regularly report on circuit reasonableness rulings in the years after Booker and the follow up cases of RitaGall and Kimbrough.  But now I barely notice these cases and rarely report on them, because there seems to me little significance in individual data points absent broader jurisprudential developments.  But maybe I am missing something, and thus the question here posed.

September 12, 2018 in Booker and Fanfan Commentary, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Florida felony disenfranchisement ugliness getting a lot more scrutiny thanks to John Oliver

John-oliver-discusses-felony-disThis local article, headlined "This HBO comedian ridiculed Florida’s clemency process. Rick Scott takes it seriously," reports on notable developments in Florida thanks in part to a low-profile issue getting some high-profile attention.  Here are excerpts:

For only the third time this year — but this time under a withering national media glare — Florida’s highest elected officials sat in judgment Tuesday of people whose mistakes cost them the right to vote.

During a five-hour hearing, 90 felons made their case to Florida Gov. Rick Scott and three members of the Cabinet, asking to have their rights restored. It was a packed house in the Cabinet room of the state Capitol, as Tuesday’s hearing drew reporters and cameras from, among other outlets, NPR, The Huffington Post and The Guardian. The hearings typically attract one or two members of the Tallahassee press corps.

Only two days before, Florida’s restoration of rights process was skewered on national TV by John Oliver of HBO’s “Last Week Tonight.” He devoted a 13-minute segment to the Florida clemency system, calling it “absolutely insane” and mocking Scott for creating “the disenfranchisement capital of America.”

Under a policy struck down by a federal judge that remains in effect while Scott and the state appeal, anyone with a felony conviction in Florida must wait five years before petitioning the state to regain the right to vote, serve on a jury or possess a firearm.

Florida has an estimated 1.5 million felons who have been permanently stripped of the right to vote, far more than any other state. To get their rights restored, they must formally apply to make an appeal before Scott and the Cabinet, which is now composed of Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam and Chief Financial Officer Jimmy Patronis....

Voters will have a chance to overhaul the restoration system before Scott and the three Cabinet members are scheduled to hold their next clemency hearing on Dec. 5. A month before then, on Nov. 6, voters will decide on Amendment 4 that would restore the right to vote to most felons after they complete their sentences, if 60 percent of voters approve....

The five-year waiting period was implemented by Scott, Bondi, Putnam and another Cabinet member after their election in 2010. A statewide petition drive collected nearly 1 million signatures to get Amendment 4 before voters this fall.

Scott, the Republican nominee for U.S. Senate against Democrat Bill Nelson, supports the existing system. With his approval, the state is now appealing U.S. District Court Judge Mark Walker’s decision to strike down the rights restoration system as arbitrary and unconstitutional.

Amendment 4 does not distinguish between violent and non-violent felons, but people convicted of murder and sex crimes would not be eligible to regain their rights if it passes. A political committee that supports the amendment, Floridians for a Fair Democracy based in Clearwater, spent $3.579 million in the week ending Aug. 31, with nearly all of the money spent on a “media buy,” which likely means TV advertising. The group has raised $14.4 million so far with large contributions from a number of wealthy out-of-state individuals and from the American Civil Liberties Union.

The permanent elimination of civil rights to felons has been in effect in the state for more than a century, under Republican and Democratic governors, and was lifted only during the four-year term of Charlie Crist, from 2007 to 2011, when 155,315 offenders who were released had their rights restored. Under Scott, only about 4,350 offenders have had their rights restored.

The full John Oliver segment, which is gets especially interested toward the end, is available at this link.

Some (of many) prior related posts:

September 12, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Misdemeanor Records and Employment Outcomes: An Experimental Study"

The title of this post is the title of this new empirical research available via SSRN and authored by Peter Leasure. Here is its abstract:

Objectives:  This study examined whether misdemeanor drug convictions impact entry-level employment outcomes.

Methods:  A multifactor between subjects correspondence design was used whereby fictitious resumes are sent to employers.  Resumes were randomly assigned to one of three groups: no criminal record, one-year-old misdemeanor record, and a one-year-old felony record.  Resumes were also randomly assigned with a distinctively White or African American name. Job type was used as an additional predictor.

Results:  Results indicate that a misdemeanor conviction significantly hinders early employment outcomes for both African American and White applicants.  However, results did not show statistically significant differences in callbacks between races.

Conclusions:  These results should be utilized to better inform defendants, practitioners, and policy-makers on the negative impacts of low-level convictions.

September 12, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Kelley Ashby Paul, Senator Rand Paul's spouse, makes the Kentucky case for criminal justice reform

Long-time readers know I have been singing the praises of Senator Rand Paul since he began making the case for consequential federal sentencing reforms more than half a decade ago.  Now I am pleased to see that Senator Paul's spouse, Kelley Ashby Paul, is adding her voice to the call for reform through this new op-ed headlined "Kelley Paul: We must focus on recovery, not incarceration."  Here are excerpts:

As a community, as a state and as a nation, we must speak out in favor of expanded rehabilitation opportunities for those struggling with addiction. Because of the Hope Center’s expansion, even more women ... will have the tools to overcome addiction and begin a new path forward in life.

It is recovery, not incarceration, which allows people to become productive members of society — citizens with jobs and families who can contribute and make our communities better places to work, grow and live. It is recovery, not incarceration, which brings hope and peace into the lives of thousands of Americans and their families struggling with addiction.

The Hope Center expansion comes on the heels of the enactment of the first ever Dignity Bill in the nation, right here in Kentucky.  Because of Sen. Julie Raque Adams’ sponsorship of the bill, and the tenacity of women leaders on both sides of the aisle, pregnant women accused of minor, non-violent crimes now have the option to enter into a recovery program. They can get the treatment they need, instead of languishing behind bars because they are unable to make bail.

Criminal-justice reform is something my husband, U.S. Sen. Rand Paul, has been fighting for since he arrived in Washington. He is a lead co-sponsor of bipartisan bail reform legislation with Sen. Kamala Harris, and with the recent introduction of the First Step Act, a major bipartisan prison reform bill that includes expanded treatment opportunities, I am hopeful we can continue our efforts to fix a broken system.  I am proud to assure the people of this commonwealth that my family will do everything we can to ensure that the First Step Act will get a vote.

Criminal-justice reform goes hand in hand with reducing homelessness, alcoholism and drug addiction.  We have learned that locking people up who are in need of treatment is not the answer.

The U.S. is the most heavily incarcerated country in the developed world, and many of those incarcerated have suffered a trauma, such as sexual or physical abuse, which led to addiction, and ultimately led them to our justice system. Instead of treating these individuals, we toss them behind bars, where their problems only get worse.  This cycle of failure results in staggering financial costs to the taxpayer, but more importantly a devastating cost to families and children.

I suspect that most folks in the Commonwealth of Kentucky are in support of the kinds of criminal justice reforms here promoted by Kelley Paul, and the state's Governor has been an outspoken reform advocate. But when it comes to getting votes on significant federal criminal justice bills, the most important person from Kentucky is Senate Majority Leader Mitchell McConnell Jr. He decides whether any bill gets a full Senate vote and he has not allowed a floor vote on any significant criminal justice reform bill during his leadership. I hope that changes soon, and maybe Kelley Paul can have more influence on this front than seemingly her spouse has so far.

September 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, September 11, 2018

A terrific partial unpacking of "Johnson v. United States: Three years out"

I noted in posts here and here last month, Attorney General Jeff Sessions and Senators Orrin Hatch and Tom Cotton are talking up the need for reform to the Armed Career Criminal Act in response to the Supreme Court's 2015 ruling in Johnson v. US.   I just now noticed that Andrew Hamm has this lengthy follow-up post at SCOTUSblog under the title "Johnson v. United States: Three years out."  I recommend that post in full, and here is a flavor:

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences.  Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.  For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes?  If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?  This post looks at some of the different factors at play....

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.  According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause.  They disagree on how broadly the law would sweep.  Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.  People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee.  Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress. 

This post provides a clear and balanced review of data and the state of the debate over one proposed ACCA fix in the wake of Johnson.  But I call the post only a "partial unpacking" of the post-Johnson landscape because it does not address whether and how federal ACCA charging practices have changed after Johnson and/or whether it might be especially sound to just give judges more sentencing discretion in response to an array of ACCA problems.

The reason Johnson in particular, and ACCA in general, is so consequential and the subject of so much litigation is because ACCA's intricate and vague rules about predicate offenses turn a regulatory crime (possessing a firearm as a felon) with normally only a 10-year maximum sentence into a mega-crime with a 15-year mandatory minimum sentence.  Rather than dicker excessively over the particulars of the rules for qualifying predicates in future ACCA debates, it might make a lot more sentence to just raise the normal maximum to, say, 15 years and also lower the ACCA minimum to, say, 5 years.  By so doing, persons with priors that might or might not qualify for ACCA treatment still could be sentenced under (advisory) guidelines in the 5-to-15-year range without a need to litigate all the particulars of all the priors.  Just a thought for would-be staffers looking forward to "six to eight months" of ACCA debates.

Prior related posts:

September 11, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

September 11, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

I do not think Prez Trump meant this tweet as a compliment to the Attorneys General, but it kinda is

President Donald Trump was tweeting up a storm yet again this morning, and this particular tweet struck me as especially ironic (and thus blogworthy):

The irony, of course, is that Prez Trump obviously means this tweet to be a criticism of current Attorney General Jeff Sessions (and likely also of former Attorney General Eric Holder).  And yet, as is so often heard from Attorneys General and others in the Justice Department, a commitment to the rule of law should often mean that the Department of Justice is to operate largely the same way no matter which person or party is formally at the helm.  In other words, from a different speaker at a different time, this statement really could be an extraordinary compliment to officials within the Justice Department.

Of course, as sentencing fans know, it is not actually accurate at all that the Justice Department is being run now just like it was run under former AG Holder.  Current AG Sessions was fairly quick to rescind any number of Holder-era guidance memos and policies on topics ranging from private prisons to charging and sentencing directions to marijuana enforcement.  And, of course, AG Sessions is reportedly trying to prevent significant sentencing and prison reforms in Congress, while former AG Holder supported various reforms (though not sufficiently, in my view). 

So, like so much this current Prez says, this tweet is wrong is more ways that the Prez even realizes. 

September 11, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Another effective examination of ups and down of federal clemency (and the persistence of hope) in modern times

Against the backdrop of almost complete disuse of the federal clemency power (especially the power to commute prison sentences) which had become a modern norm, the clemency activity over the last few years of the Obama Administration and at the start of the Trump Administration have been encouraging.  But this effective extended review of recent developments, with a focus on the case of "Life for Pot" defendant John Knock, highlights that for many downs rather than ups define the reality of all the buzz around clemency.  The article's full headline highlights its themes: "The Prisoners Left Behind: How Barack Obama’s clemency operation failed thousands of drug offenders, some serving long sentences for cannabis crimes, and left them at the mercy of Donald Trump’s whims."  Here is an excerpt:

Knock is one of more than 1,500 drug offenders set to die in federal prison under 1980s-era drug sentencing laws, despite a critical shift in drug punishments since then. Dozens of those lifers are marijuana offenders like him. With no other recourse, Knock had turned to clemency as his best chance at freedom.  Obama’s program was well intentioned but hobbled by poor planning.  Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But those hopes were misplaced. Although President Obama’s program did grant more than 1,700 commutations — more than any other president — clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of the 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.... 

But in fact, the commission found that only 3 percent of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5 percent of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.” 

“It felt like a lottery, in the sense that if you say you need six criteria to be considered, people are going to take you at your face value,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.  Thousands of other petitions got no response at all. On Obama’s final day in office, 11,000 pending petitions rolled over into President Donald Trump’s administration, leaving thousands of cases still languishing in limbo as inmates looked to another president for mercy....

[I]n early June the president did commute the life sentence of Alice Johnson, who had served twenty years in prison for her role in a large cocaine distribution ring. Before Trump, President Obama had denied Johnson’s requests for clemency three times. 

Trump’s move came at the request of a celebrity, Kim Kardashian West, who visited the White House again this week to discuss criminal justice reform.  Kardashian also said this week she has a second candidate for clemency in mind, a man named Chris Young who is serving a life sentence for cannabis and cocaine convictions.  He was thirty years old when he was sent to prison almost a decade ago. Two days after granting Johnson’s clemency, Trump said he was considering other pardons from a list of 3,000 names. But despite his decision for Alice Johnson, some still doubt the possibility of a wholesale initiative like Obama’s. 

“I think there’s a lot of uncertainty as to what it means because I don’t trust this administration,” said Courtney Oliva. “Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.”  But to John Knock and his family, the latest clemency approval has ushered in a surge of optimism.  “How do I feel? Hopeful,” Knock wrote in a letter, days after Johnson’s release. “Obama had seven layers of bureaucracy one had to pass through.  Trump has one.” 

“It’s disruptive to the way the system has always worked,” Knock’s sister Beth Curtis said. “If it is done directly through the White House, and the White House considers petitions that had been carefully vetted by people in the criminal justice community, that’s a very positive thing.”... 

“I still have hope,” Knock said.  Knock’s name is among the several that have been sent directly to senior advisor Jared Kushner, according to Curtis, and Knock’s was sent by “a man who knew John in high school who is a friend of Mike Pence.”

September 10, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable review of Japan's modern administration of its death penalty

This new press piece under the headline "Cruel yet popular punishment: Japan's death penalty" provides an accounting of capital punishment's operation and reception in the only major modern democracy other than the US using it. Here are excerpts:

Years waiting on death row, inmates told their fate just hours before their execution, and guards paid extra to do an "unbearable" job –- Japan's capital punishment system is criticized as cruel and secretive yet remains popular. Unusually for an major industrialised power, capital punishment in Japan enjoys broad public support with few calls for its abolishment.

Inmates are executed not by professionals but by ordinary prison staff who may have been guarding the condemned for months or even years, and who receive extra pay of 20,000 yen each. "It's awful, the body bounces like a 70-kilogram object on a nylon rope," said Toshio Sakamoto, who witnessed noosed inmates plunge to their deaths, and described the process as "unbearable."

Blindfolded convicts, usually those who have killed more than one person, are led to a spot with their feet bound and hands cuffed. Then, a trapdoor opens below. The mechanism is triggered by a button in an adjacent room, pressed simultaneously by several officers, although none is told which button is the "live one" that will cause the prisoner's fall....

Japan is the only major industrialised democracy other than the United States to carry out capital punishment. The system was thrust into the international spotlight in July when the country hanged 13 doomsday cultists but the secretive methods have come under fire for being cruel for criminals, families and guards.

Under law, the death sentence should be carried out six months after confirmed by the top court. In reality however, prisoners languish on death row for many years -- Japan has a total of 110 awaiting execution. "Prisoners are typically only given a few hours' notice before execution, but some may be given no warning at all," said Amnesty International in a recent statement.

"Inmates are kept in isolation suffering the anguish of never knowing when they are going to be put to death -– sometimes for decades," added the pressure group. Families are only informed after the execution, noted Amnesty.

The government cites broad public support as a reason to maintain capital punishment but there is little public debate as the whole process is veiled in secrecy. The authorities have just once allowed a 30-minute media visit inside the glass-walled execution room in the Tokyo Detention House, arguably the best-kept among Japan's seven facilities with gallows.

A 2014 government survey of around 1,800 people showed 80 percent thought capital punishment was "unavoidable", with only one in 10 in favor of abolishing it. But 38 percent thought it should be abolished if Japan introduces life imprisonment without parole -- something the penal code does not currently allow.

One 62-year-old businessman in Tokyo said it would be "insane" to think of scrapping capital punishment. And Mika Koike, a 29-year-old IT engineer, said: "Taking the victims and their families into consideration, I think there is no other clear, absolute way to punish the offenders." Kotaro Yamakami, a 25-year-old politics student, said murderers should pay in kind....

For now, there is no sign that Japan's leaders are pondering any changes. On July 5, the eve of executions of seven Aum cultists, a smiling Prime Minister Shinzo Abe was photographed in a drinking party with fellow politicians, giving the thumbs-up for a collective snapshot with his justice minister who had signed off on the hanging orders.

September 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Sunday, September 9, 2018

"Sex Offenders, Custody and Habeas"

The title of this post is the title of this new paper by Wendy Calaway now available via SSRN.  Here is the abstract:

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, September 8, 2018

"The Power of Prosecutors"

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

One of the predominant themes in the criminal justice literature is that prosecutors, not legislators, judges, or police, dominate the justice system.  Over 75 years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.”  In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors, not judges, police, or legislators, “are the criminal justice system’s real lawmakers.”  And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence.  It reveals a curious echo chamber enabled by a puzzling lack of dissent.  With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system,” has real consequences for criminal justice discourse.  Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes.  The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

September 8, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, September 7, 2018

US House passes broad rewrite of the federal definition of "crime of violence" without any hearings

While a number of seemingly popular federal sentencing reform bills and marijuana reform bills have waited years for a vote in one or another chamber of Congress, the "Community Safety and Security Act of 2018," H.R. 6691, was passed through the US House of Representatives this morning barely a week after its introduction.  This new Reason piece provides some details under a full headline that captures the essentials: "House Passes Bill to Reclassify Dozens of Offenses as 'Crimes of Violence': Opponents say the bill, rushed to the floor without a hearing, would dangerously expand what's considered an 'aggravated offense'":

Republicans in the House passed a bill this morning that would reclassify dozens of federal crimes as "crimes of violence," making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of overcriminalization.

The Community Safety and Security Act of 2018, H.R. 6691, passed the House by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud.

"Groups on the right and the left are deeply concerned about the bad policy in this bill and the unfair process through which it came to the floor," Holly Harris, the executive director of the U.S. Justice Action Network, said in a statement to Reason. "At a time when we have bipartisan support for criminal justice reforms that will safely reduce incarceration and better prioritize public safety, passing a bill that does just the opposite makes no sense at all."

In April, the Supreme Court ruled in Sessions v. Dimaya that the definition of a "crime of violence" used for federal immigration law — conviction under which can lead to deportation proceedings — was unconstitutionally vague. House Republicans crafted the bill, they say, in response to the Supreme Court's recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill "would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses."...

The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation "expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses."...

Rep. Karen Handel (R-Ga.) claims the bill is urgently needed to keep, as its name suggests, communities safe from violent crime.  "We don't have the privilege to squabble over hypotheticals that have no bearing on the application of this law," Handel said on the House floor.  "I can assure my colleagues this bill is not overly broad. It's not a dangerous overexpansion. Instead, it's a carefully crafted response to the Supreme Court's recommendations."

Democrats and criminal justice groups also objected to the speed at which the bill sailed to the House floor.  It was introduced just a week ago and did not have a single hearing or markup prior to today's vote. The House Liberty Caucus calls the process "farcical."

In a tweet, Jason Pye, the vice president of legislative affairs at the libertarian-leaning group FreedomWorks, writes: "In my view, this bill is mostly politics.  I agree that Dimaya requires a fix, but this bill has flaws that could have, and should have, been worked out in committee markup.  It's shameful that this bill was handled this way."

Especially because the definition of "crime of violence" under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House. I am also amazed at how quickly complicate legislation can be moved through part of the legislative process when there is a political will to do so (even when it is unclear whose political will is in operation).

September 7, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

You be the federal judge: what sentence for George Papadopoulos after guilty plea to one count of making false statements?

As reported in this Hill article, headlined "Former Trump adviser Papadopoulos to be sentenced Friday," a high-profile defendant is due to be sentenced in federal court this afternoon by Judge Randolph Moss.  Here are some of the terms of the sentencing debate:

George Papadopoulos, the Trump campaign adviser who pleaded guilty nearly a year ago to lying about his Russia contacts, is scheduled to be sentenced in federal court on Friday.

His sentencing will mark a milestone in Robert Mueller’s Russia investigation as the special counsel makes headway on several other fronts, including interviewing individuals linked to former Trump adviser Roger Stone and readying for the Washington, D.C., trial of former Trump campaign chairman Paul Manafort.

Papadopoulos admitted to lying to FBI agents in October about the extent, nature and timing of his contacts with Russian individuals who he tried to use to broker a meeting between the campaign and the Russian government.

Government prosecutors are asking that Papadopoulos be jailed for up to six months and that he face a $9,500 fine for his crime, arguing in a recent court filing that his false statements “caused damage to the government’s investigation into Russian interference in the 2016 presidential election.” “The defendant’s false statements were intended to harm the investigation, and did so,” prosecutors wrote in an Aug. 17 sentencing memorandum.

Papadopoulos’ defense attorneys, meanwhile, are challenging the notion that their client did deliberate harm to the investigation, writing in a filing on Aug. 31 that Papadopoulos “misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.” They argue he should face one-year probation.

The Papadopoulos case is noteworthy because he was the first Trump associate to plead guilty and cooperate with prosecutors in Mueller’s investigation. There is no indication that he played more than a minimal role during his months as a foreign policy adviser on the campaign. The White House aggressively sought to downplay his involvement last year, with the president dismissing him as a “low-level volunteer” in a tweet following his guilty plea.

The sentencing of Papadopoulos, 31, will tie up one loose end in the special counsel’s sprawling investigation, and signals his cooperation is no longer needed in the investigation. His guilty plea created a media firestorm last October, revealed the same day Mueller charged Manafort and Rick Gates, another former Trump campaign aide, in an elaborate illegal foreign lobbying scheme unrelated to the work they did during for the campaign.

Court filings told the curious story of a young aide who misled FBI agents during a January 2017 interview about his contacts with a professor, later identified as Joseph Mifsud, who claimed substantial connections to the Russian government and who told Papadopoulos that the Russians possessed “dirt” on Hillary Clinton in the form of “thousands of emails” – months before hacked Democratic emails began to leak on the web. The New York Times later reported that it was Papadopoulos’ discussions with an Australian diplomat, Alexander Downer, about those emails in May 2016 that helped trigger the FBI’s inquiry into Russian interference the following July.

Papadopoulos also misled FBI investigators about his contacts with other Russians, including a woman believed to be a relative of Putin, who he sought to use to broker a meeting between the Trump campaign and Moscow – lies that the government says were damaging to an investigation in its infancy.

Prosecutors have suggested his cooperation did not bear much fruit, writing in August that he did not offer “substantial assistance” to the investigation and that much of the information he provided “came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas.”

The Papadopoulos defense attorneys tell a different story. They say that, since his guilty plea, he has provided government investigators with “critical information” about his contacts with members of the Trump campaign. In the recent filing, they referenced a key meeting in March 2016 during which he allegedly broached the subject of arranging a meeting between Donald Trump and Russian President Vladimir Putin....

Papadopoulos will be the second individual sentenced in the Russia investigation. Dutch lawyer Alex Van Der Zwaan was handed 30 days in prison and slapped with a $20,000 fine in April after pleading guilty to making false statements relevant to the government’s investigations into foreign lobbing by Manafort and Gates. Papadopoulos’ wife, Simona Mangiante, had signaled in recent weeks that her husband was mulling walking away from the plea deal with Mueller, though she backed down from those suggestions late last week.

Prior related post:

UPDATE: This Vox article provides the real outcome in its headline, "Papadopoulos given 14-day sentence as part of the Mueller investigation."

September 7, 2018 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (3)

"Mitigation is Difficult: A Moral Evaluation of a Mitigation Practice at Sentencing"

The title of this post is the title of this interesting-looking new paper just posted to SSRN authored by Allan McCay.  Here is its abstract:

In this paper I presuppose that blame and retributive punishment can be deserved, and construct a theory that is intended to morally evaluate the mitigation practices of criminal justice systems, using insights about the assessment of degrees of blameworthiness found in the work of Dana Nelkin, in conjunction with David Hodgson’s views on self-formation. After using the theory to evaluate an actual mitigation practice, I note that as a result of the complexity of any fully satisfactory theory, there is an epistemic problem inherent in the assessment of pleas in mitigation that means that even moderately competent evaluation of such pleas may be beyond the capacities of humans.  I argue that this epistemic issue presents a problem for retributive practices, such as those found in many criminal justice systems.

September 7, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 6, 2018

Noting the uptick in federal gun prosecutions

This Courthouse News Service piece, headlined "Trump Administration Steps Up Prosecution of Gun Crimes," reports on and contextualizes this recent TRAC data report titled "Weapons Prosecutions Continue to Climb in 2018." Here are excerpts from the press piece:

Though Donald Trump ran on a pro-gun, Second Amendment platform, a recent study from Syracuse University shows the administration has stepped up prosecutions of weapons offenses, bringing 8,403 such cases in the first 10 months of fiscal year 2018, a 22.5 percent increase from the previous year.

TRAC Reports, a data-gathering organization at Syracuse University, also reported last week that that nation’s 94 U.S. Attorney’s Offices have prosecuted 41.3 percent more weapons cases than they did 5 years ago, under the Obama Administration.

Attorney General Jeff Sessions told the National District Attorneys Association in July 2017: “I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.”

The Bureau of Alcohol, Tobacco and Firearms handles the lion’s share of prosecutions, the TRAC study said: 64 percent of the prosecutions were recommended by BATF....

In addition to prosecuting people who use guns during crimes, Sessions said prosecutors also are targeting people who are prohibited from owning firearms, such as felons, and guns that are illegal in themselves, such as those with serial numbers scratched off....

However, David Kennedy, director of the National Network for Safe Communities at John Jay College, said the focus on prosecuting federal firearms offenses to too simplistic, because U.S. Attorney’s Offices do too little on their own to deter crime. Most gun crimes are first handled by state and federal law enforcement, Kennedy said, and federal attorneys prosecute the cases they choose to adopt, which is a fraction of the larger pool of gun-related offenses.

“What goes to federal and what doesn’t is effectively completely unpredictable on the street,” Kennedy told Courthouse News. “So if you’re somebody walking around in the community and you’re thinking whether or not to carry a gun or whether to commit a gun crime, you may not even know that the federal policy has changed. If you’re not aware that the U.S. attorney is taking more of these cases, it’s not going to affect your behavior.”

By the time charges are leveled and the accused is standing in a federal courtroom, it’s too late for them to change their behavior, Kennedy said. He said one unintended consequence of focusing on firearm prosecutions is that young, urban black men are overwhelmingly targeted by prosecutors, which makes the communities in which they live more distrustful of police and law enforcement.

Instead of focusing on gun prosecution, Kennedy said, it would be more effective if law enforcement seeks to identify the people most likely to commit violent crime and engage in outreach. He cited Oakland, California’s Operation Ceasefire, which identified the less-than 1 percent of Oakland residents who were associated with two-thirds of the city’s gun violence and provided them with coaching, social services, jobs and other assistance.

September 6, 2018 in Data on sentencing, Gun policy and sentencing, Who Sentences | Permalink | Comments (0)

The (complicated) Florida constitutional ballot initiative, Amendment 11, seeking to allow retroactive sentencing changes

Download (20)My twitter feed lately has included links to "Yes on 11," which is a reference to the ballot initiative coming before voters in Florida that seeks to, according to the campaign, repeal "three obsolete or outdated provisions of Florida’s constitution."  One of those provisions concerns sentencing reform, and here is more from the campaign website:

Florida's Constitution Revision Commission added Amendment 11 to the ballot by a vote of 36-1, the largest margin of any measure added to the ballot by the CRC this year.

WHAT DOES AMENDMENT 11 ACTUALLY DO?

There's no denying that Amendment 11 is confusing. It contains several provisions, the ballot summary is full of legalese, and it even appears contradictory in places. Here's a brief summary of Amendment 11 that will hopefully clear up any confusion.

Amendment 11 does three things, each related to some obsolete or outdated provision of Florida's constitution. Here they are:

1. AMENDMENT 11 AMENDS FLORIDA'S "SAVINGS CLAUSE" TO ALLOW RETROACTIVE APPLICATION OF CHANGES TO CRIMINAL STATUTES, INCLUDING REDUCTIONS OF CRIMINAL SENTENCES.

In 1885, delegates to the Florida constitutional convention added a provision to Florida's constitution that said whatever the sentence is at the time a crime occurs is the only sentence that matters, no matter what happens in the future.

Even if the legislature reduces the sentence for a crime later, courts can't go back and change it for anyone who's already been convicted. Florida is the only state in the country with this provision in its constitution.

Amendment 11 would give the legislature the authority to apply sentencing reforms retroactively, or reduce sentences for those who were convicted under old laws.

For examples of who would benefit from this change, click here.

2. AMENDMENT 11 REPEALS THE "ALIEN LAND LAW."...

3. AMENDMENT 11 REPEALS OBSOLETE LANGUAGE ABOUT A HIGH-SPEED RAIL SYSTEM....

WHAT DO THESE THINGS HAVE TO DO WITH EACH OTHER?

That's a good question! On the surface, a provision about criminal statutes, another about property rights, and another about an obsolete high-speed rail system don't really have much in common. So why are they all grouped together on the ballot? All three provisions are obsolete, outdated, or both....

These provisions were grouped together because none is controversial. No member of the public and no organization opposed any of the proposals in Amendment 11 at any public meeting of the Constitution Revision Commission. To avoid making an already long ballot even longer, the CRC grouped these uncontroversial proposals together....

Every element in Amendment 11 is exclusively a constitutional issue. Unlike some of the other amendments on the ballot, nothing in Amendment 11 is a policy issue that could be settled in the legislature.

Amendment 11 is a "cleanup" amendment. In 1998, Florida voters approved a similar amendment that bundled eight technical revisions to the constitution. Like those in Amendment 11, those provisions were not controversial.

Writing three different amendments for these proposals would make an already lengthy ballot unnecessarily longer. Bundling the repeal of outdated and obsolete provisions makes the voting process more convenient and allows voters to spend more time on the issues that have generated more controversy. The proposals in Amendment 11 are bipartisan, and passed by a vote of 36-1 in the Constitution Revision Commission.

Regular readers know my affinity for allowing retroactive sentencing changes, so I am all in on Amendment 11 (if only I was a Florida voter).

September 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

"Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?"

The title of this post is the title of this very lengthy Miami Herald article which gets started this way:

Nikolas Cruz had two mothers: his birth mom, who gave him life, an almond-shaped head and auburn hair — and his adoptive mom, who gave him all the advantages of an upscale, suburban upbringing.

His birth mother, Brenda Woodard, was sometimes homeless, and panhandled for money on a highway exit ramp. His adoptive mother, Lynda Cruz, stayed home to manage a 4,500-square-foot, five-bedroom house in the suburbs, with a two-car garage and a sprawling yard. A career criminal, Woodard’s 28 arrests include a 2010 charge for beating a companion with a tire iron; she also threatened to burn the friend’s house down. Lynda Cruz had a clean record.

Woodard was so gripped by addiction she was arrested buying crack cocaine while pregnant with Nikolas. Lynda Cruz was known to drink wine, though not excessively.

Conventional wisdom suggests that Nikolas Cruz should have taken after the woman who raised him from birth, rather than the one who shared only his DNA. But little of Cruz’s story is conventional. While, by most accounts, Lynda Cruz was thoughtful and disciplined, her adoptive son was violent and impulsive — characteristics he seems to share with the birth mother he never knew.

Now the history of his birth family — sealed by statute and never before reported — could become a factor in his desperate attempt to stay off Florida’s Death Row.

Many of the details of Cruz’s difficult childhood and stormy adolescence emerged in the months following his deadly Feb. 14 attack on Marjory Stoneman Douglas High School in Parkland that left 17 students and staff members dead: He was a poor student prone to sometimes violent outbursts. He had an unhealthy obsession with guns. He shot and tortured animals. But where Cruz came from, genetically, has remained a missing piece of the puzzle.

Though Nikolas was raised in comfort — Lynda Cruz apparently believed that indulging her son with video games and weapons would soften his moods — the shadow of his genetic heritage seemed to loom over his life.

Experts in criminal law say the Broward Public Defender’s Office will likely explore Cruz’s genetic makeup and childhood development in their effort to keep the 19-year-old from being executed. His birth mother could be called to testify during the sentencing phase of his trial on 17 charges of first-degree murder and 17 charges of attempted murder.

Prior related posts:

September 6, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Wednesday, September 5, 2018

ACLU Campaign for Smart Justice launches "Smart Justice 50-State Blueprints"

As detailed in this ACLU press release, titled "Smart Justice Blueprints Launch With 24 State Reports And Interactive Web Tool, Remaining 27 To Be Rolled Out In Coming Months," the folks at the ACLU have an interesting new set of state-focused national resources advocating for criminal justice reform. Here are portions of the press release:

The American Civil Liberties Union’s Campaign for Smart Justice today unveiled the Smart Justice 50-State Blueprints, a comprehensive, state-by-state analysis of how states can transform their criminal justice system and cut incarceration in half.

The Smart Justice 50-State Blueprints are the first-ever analysis of their kind and will serve as tools for activists, advocates, and policymakers to push for transformational change to the criminal justice system.  They are the result of a multi-year partnership between the ACLU, its state affiliates, and the Urban Institute to develop actionable policy options for each state that capture the nuance of local laws and sentencing practices.

The 51 reports — covering all 50 states and the District of Columbia — will be released in multiple phases, beginning with an initial rollout of 24 state reports.  The reports are all viewable on an interactive website that allows users to visualize the reductions in jail and prison population that would result from the policy decisions that states pursue.  The interactive feature is here.

Each blueprint includes an overview of the state’s incarcerated populations, including analysis on who is being sent to jail and prison and the racial disparities that are present, what drives people into the system, how long people spend behind bars, and why people are imprisoned for so long.  The blueprints offer a calculation on the impact of certain reforms by 2025 on racial disparities in the prison population, fiscal costs, and overall prison population.  They also show precisely how a 50 percent decarceration goal could be achieved.

While more than 2 million people are behind bars in the United States, only about 10 percent are in federal prisons. Approximately 90 percent of the people incarcerated in the United States are held in local jails and in state prisons.  “Mass incarceration is a nationwide problem, but one that is rooted in the states and must be fixed by the states,” said Udi Ofer, director of the ACLU Campaign for Smart Justice.  “We hope that the Smart Justice 50-State Blueprints provide necessary guideposts for activists and policymakers as they pursue local solutions that will address the stark racial disparities in our criminal justice system and dramatically reduce their jail and prison populations.  Some of the reforms contained in the blueprints are readily achievable, while others are going to require audacious change. But all are needed to prioritize people over prisons.”

The state reports provide a snapshot of how reformers cannot take a one-size-fits-all approach to ending mass incarceration.  For example, in Louisiana, because more than one in three people admitted to prison in 2016 were convicted of property offenses and 30 percent of all admissions were for drug offenses, one road that Louisianans could take for reducing their prison population would be reclassifying drug and many property offenses as misdemeanors rather than felonies.

In Pennsylvania, the number of people entering prison for parole violations grew by 56 percent between 2006 and 2016, suggesting that the state’s decarceration strategy should include the improvement of parole and release policies and the implementation of reforms that would drive down the number of people sent to prison due to supervision violations.

Finally, in Michigan, 16 percent of prison admissions are for drug offenses, and a majority of the people (74 percent) imprisoned in Michigan are serving time for offenses involving violence. Thus, to reduce significantly the prison population in Michigan, policymakers must focus more heavily on transforming the way the criminal justice system responds to offenses like robbery and assault, which lead to sentences that have become harsher and longer over the past decade.

The website and the reports were created by utilizing a forecasting tool developed by the Urban Institute, which can be viewed here.

September 5, 2018 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (6)

Can Kimme bring "REAL systemic change" to the clemency process? She is with all the right folks at the White House.

After Kim Kardashian West talked Prez Donald Trump to commute the life sentence of a drug offenders (basics here), I am inclined to call her a leading force in modern criminal justice reform. And now, as detailed in this CNN piece, headlined "Kim Kardashian at White House for clemency review session," she is back at the White House preaching the need for systemic reform:

Kim Kardashian West arrived at the White House on Wednesday to discuss sentencing reform and clemency issues with White House officials, two White House officials told CNN. The reality TV star and entrepreneur was not expected to meet with President Donald Trump, one White House official said, though the plans could change.

Kardashian West, who successfully lobbied Trump earlier this summer to commute the sentence of Alice Marie Johnson, a nonviolent drug offender serving a life sentence, returned to the White House on Wednesday for a listening session on clemency issues with White House officials, including the President's son-in-law Jared Kushner.

"Today at the White House, members of the administration are hosting a listening session about the clemency process. The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review," deputy White House press secretary Hogan Gidley said in a statement.

Kardashian West was just one of several prison reform advocates and legal activists at the White House for the listening session on Wednesday, including Van Jones, a CNN political commentator and former adviser to President Barack Obama; Leonard Leo of the Federalist Society; Mark Holden, the general counsel of Koch Industries and Jessica Jackson Sloan, a human rights attorney and prison reform advocate.

Other attendees include Rachel Barkow, Brittany Barnett, Alex Gudich, Shon Hopwood, Paul Larkin, Mark Osler and Kevin Sharp, a former federal judge....

Trump's exercise of that clemency power has so far been on a case-by-case basis and frequently animated by personal loyalty or personal advocacy efforts. The White House is now seeking to create a regular review process for clemency review.

Kardashian West has signaled in recent days that she is taking up another case, appearing on the podcast "Wrongful Conviction" to say that she is now working on the case of Chris Young, who is serving a life sentence related to a drug case due to a mandatory minimum prison sentence.

This report is very encouraging, as is this tweet from Ms. West:

A few of many recent related posts about recent Trumpian clemency activity:

September 5, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Decarceration Strategies: How 5 States Achieved Substantial Prison Population Reductions"

The title of this post is the title of this new 50-page report by The Sentencing Project. Here is the start of its executive summary:

From 1980 until its peak in 2009, the total federal and state prison population of the United States climbed from about 330,000 to more than 1.6 million — a nearly 400% increase  — while the total general population of the country grew by only 36%, and the crime rate fell by 42%.  The catalyst of this prison expansion was policy changes that prioritized “getting tough” on crime. 

The national prison population began a gradual descent after 2009, lessening by nearly 113,000 (6%) from 2009 through 2016.  Several factors contributed to this decline: ongoing decreases in crime rates leading to fewer felony convictions; scaling back “war on drugs” policies; increased interest in evidence-based approaches to sentencing and reentry; and growing concerns about the fiscal cost of corrections and its impact on other state priorities.  The state of California alone was responsible for 36% of the overall population decline, a function of a 2011 U.S. Supreme Court ruling declaring its overcrowded prison system to be unconstitutional and subsequent legislative responses to reduce the use of state incarceration.

Despite the decline, the overall pace of change is quite modest.  A recent analysis documents that at the rate of change from 2009 to 2016 it will take 75 years to reduce the prison population by half.  And while 42 states have experienced declines from their peak prison populations, 20 of these declines are less than 5%, while 8 states are still experiencing rising populations.

To aid policymakers and criminal justice officials in achieving substantial prison population reductions, this report examines the experience of five states – Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina — that have achieved prison population reductions of 14-25%.  This produced a cumulative total of 23,646 fewer people in prison with no adverse effects on public safety. (While a handful of other states have also experienced significant population reductions — including California, New York, and New Jersey —  these have been examined in other publications, and so are not addressed here.

The five states highlighted in this report are geographically and politically diverse and have all enacted a range of shifts in policy and practice to produce these outcomes.  All five were engaged in the Justice Reinvestment Initiative process, spearheaded by the Pew Charitable Trusts and the Council on State Governments, which was designed to work with stakeholders to respond to the driving forces of prison expansion in each state and to develop strategies for change in policy and practice.

This report seeks to inform stakeholders in other states of the range of policy options available to them for significantly reducing their prison population.  While we provide some assessment of the political environment which contributed to these changes, we do not go into great detail in this area since stakeholders will need to make their own determinations of strategy based on the particularities of their state.  We note, though, that the leaders of reform varied among states, and emerged among governors, legislators, criminal justice officials, and advocacy organizations, often benefiting from media coverage and editorial support.

The prison population reductions in these five states were achieved through data-driven policy reforms that pursued bipartisan consensus.  Changes were advanced in the areas of risk and needs assessment, community supervision, alternatives to incarceration, sentencing and sanctions, prison release mechanisms, prisoner reentry and community reintegration.

Five key strategies and practices that were employed in these states are summarized below, followed by extensive reviews for each of the five states.

September 5, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, September 4, 2018

Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)

A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans.  Here are the basics:

When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”

Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.

On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.

Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.

Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.

The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.

Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”

Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.

As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld.  Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read).  Here are some key passages therein (emphasis in original):

Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate.  Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.  As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.”  Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....

[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories.  Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice.  In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.

The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive.  It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states.  Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.

Download Matthews v. Cain excessiveness opinion

September 4, 2018 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Former Enron CEO Jeff Skilling completes his time in federal prison

The name Jeff Skilling still stirs up a lot of sentencing thoughts for me because, 15 years ago, he was portrayed as one of the "worst-of-the-worst" white-collar offenders and he was one of the first very high-profile white-collar defendants to be sentenced after Booker made the guidelines advisory.  Consequently, this new article caught my eye under the headline "Former Enron CEO Jeff Skilling released from prison and sent to a halfway house." Here are the particulars and context:

Jeffrey K. Skilling, the former Enron CEO sentenced to a long prison term for his role in one of most notorious corporate fraud cases in history, was recently released from a minimum security federal prison camp in Alabama to a halfway house at an undisclosed location.

Enron's spectacular collapse cost investors billions of dollars and wiped out the retirement savings — not to mention the jobs — of thousands of employees.  Skilling, 64, was convicted of 12 counts of securities fraud, five counts of making false statements to auditors, one count of insider trading and one count of conspiracy in 2006 for his role in hiding debt and orchestrating a web of financial fraud that ended in the Houston company's bankruptcy.

He was sentenced to 24 years in prison and fined $45 million, the harshest sentence of any former Enron executive.  Five years ago, Skilling's sentence was reduced to 14 years by U.S. District Judge Sim Lake.  He is scheduled to be released Feb. 21, 2019, according to the Bureau of Prisons.

Federal prisoners are often released from prison several months early to a halfway house, a highly restricted dormitory-like setting that helps inmates ease back into society. They must maintain curfews, find work and stay out of trouble.  A. Kelley, assistant residential re-entry manager for the Bureau of Prisons in San Antonio, said the bureau would not say where Skilling is living.

The Bureau of Prisons typically sends inmates to a halfway house in their home city where they resided before incarceration.  It helps them re-acclimate to a more normal life and re-establish relationships with their families, said Philip Hilder, a white-collar defense lawyer who represented Sherron Watkins, a former vice president at Enron who went to then-Enron chairman Kenneth Lay to warn him of accounting irregularities she discovered while reviewing Enron's assets.

Inmates are typically required to get a job while they're at a halfway house and to report regularly to the federal probation department for up to three years, Hilder said. Skilling's lawyer could not be reached for comment.

September 4, 2018 in Celebrity sentencings, Prisons and prisoners, Reentry and community supervision, White-collar sentencing | Permalink | Comments (0)

Monday, September 3, 2018

Noticing latest USSC data on retroactive impact of "drugs -2" guideline amendment

Just before the long weekend, I saw that the US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated August 2018, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 31, 2018, and for which court documentation was received, coded,and edited at the Commission by August 23, 2018."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782 (the so-called "drugs -2" guideline amendment) fully retroactive, now 31,381 federal prisoners have had their federal drug prison sentences reduced by an average of 25 month.  (Notably, this federal register document reports that the "average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017."   This "average cost" number is a very imperfect proxy for the actual prison cost savings from reduced sentences resulting from the retroactive drugs-2 guideline amendment, but it suggests federal taxpayers have saved billions in prison costs thanks to drugs -2 retroactivity.)  

Among other impacts, the the drugs -2 amendment and its retroactivity are likely key contributors to a continued decline in the federal prison population.  The amendment was in 2014, and its  retroactivity became effective in November 2015.  In Fiscal Year 2014, the federal prison population clocked in at 214,1495, and in Fiscal Year 2015 the federal prison population was down to 205,723.  By Fiscal Year 2016, the federal prison population dropped all the way down to 192,170; by Fiscal Year 2017, the federal prison population was down further to 185,617.  As as of August 30, 2018, the federal prison population was at 182,797.  (All theses data come from this Bureau of Prisons webpage.)   I keep expecting and waiting for the policies and practices of Attorney General Jeff Sessions to turn around this recent steady decline in the federal prison population, but is seems the "drugs -2" guideline amendment, its retroactivity and other forces have keep a downward pressure on the federal prison population for the time being.

September 3, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

"Giving Guidance to the Guidelines"

The title of this post is the title of this paper by Jelani Jefferson Exum recently posted to SSRN. Here is its abstract:

Throughout the country, we are seeing sentencing reform efforts reshape the way resources are being used to control crime and punish offenders.  Fueled mostly by the practical challenges of overcrowded prisons and mounting costs, lawmakers have been willing to amend existing law in order to reduce incarceration for low-level, nonviolent offenders. This same effort at being “smart on crime” has been embraced by the federal government as well.  While most of these changes are in the form of changes to mandatory minimum laws, the use of evidence-based sentencing practices, and a focus on diversion and re-entry programs, the role that the actual sentencers -- the judges -- play in the process should not be ignored. Any reform of federal sentencing necessarily requires reforming the U.S. Sentencing Guidelines to incorporate those changes.  However, now that the sentencing guidelines are advisory, judges can follow their own policy rationales in deciding what sentences are reasonable for each offender before them.  Therefore, though Congress may have made certain changes to sentencing law, and the Attorney General may have shifted law enforcement and punishment priorities, when it comes to individual sentencing decisions, judges are free to follow their own vision of sentencing reform.

While judicial sentencing discretion has its benefits when it comes to individualizing sentences, unfortunately, judges often do not have enough relevant information to adequately determine what amount and type of punishment is appropriate to achieve punishment goals.  However, my interviews with federal district judges indicate that many judges are very open to receiving such information.  Thus, federal sentencing reform efforts should include the development of a way to effectively deliver information about sentencing goals and purposes to district judges.  The Guidelines could be used to accomplish this task, but that would require allowing the needs of judges to give guidance to the Guidelines.

September 3, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, September 2, 2018

After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation

I am always pleased when politicians show a willingness to "evolve" on various issues, especially when they evolve toward a position that I embrace.  So I am quite pleased to see this lengthy new SCOTUSblog commentary by Senator Orrin Hatch under the headline "Judge Kavanaugh’s fight for stronger jury rights," which assails "basing prison sentences on conduct for which a defendant has been acquitted by a jury." I recommend the piece in full, and these particular passages justify both praise and follow-up questions:

Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants.  One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury.  It’s a practice as outrageous as it sounds....

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”  The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment....

In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge.  Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice.  Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”...

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct.  Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound — and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness — Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”...

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct.  But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law.  I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.”  The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do.  It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct.  However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

I could not be more thrilled to hear a prominent experienced Senator calling acquitted conduct sentencing "outrageous" and asserting that "this practice must end."  I am also over the moon to hear that Senator Hatch is soon to introduce the "Acquitted Conduct Sentencing Reform Act," and I sincerely hope some folks have the sense to try to role it into the on-going federal prison and sentencing reform bills working their way through Congress. 

But I have to ask, as follow-up question number one for Senator Hatch, what took you so long?  The ugliness of acquitted conduct sentencing has been on full display since the 1997 Watts decision and your commentary here also references the 2014 dissent from certorari by Justice Antonin Scalia in an acquitted conduct case.  And Judge Kavanaugh has been calling for the barring of acquitted conduct guideline enhancements for nearly a decade.  Moreover, Senator Hatch, you served a chair of the Judiciary Committee at the time Watts was decided and also when Blakely was decided and Booker was before SCOTUS.  For those of use who have long railed against acquitted conduct sentencing, it sure would have been nice to have an ally like you, Senator Hatch, much sooner than a few months before your retirement after more than four decades in charge of helping to make the rules for the federal sentencing system.

That all said, my biggest follow-up question is for every other member of Congress: Are you willing to sign on ASAP to the "Acquitted Conduct Sentencing Reform Act" and commit to making its passage a fitting going-away present for Senator Hatch.  Because I agree with Senator Hatch that acquitted conduct sentencing is "outrageous" and is a practice that "must end," I hope all members of Congress join in on the Senator Hatch acquitted conduct (r)evolution.

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

Previous related posts on the acquitted conduct stressed by Senator Hatch:

September 2, 2018 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Did the Buffalo Bills cause the Oklahoma City bombing?

The quite silly question in the title of this post is prompted by this remarkable new Politico Magazine piece headlined "How Football Fed Timothy McVeigh’s Despair: The Oklahoma City bomber was once a promising young Gulf War veteran.  His slide into isolation and extremism happened to dovetail with the fate of his beloved Buffalo Bills."  For a host of reasons, I recommend the full Politico piece (which comes from a book by Sam Anderson), which provides context for this closing excerpt from the article:

Just four weeks after that disastrous Super Bowl loss [by the Bills in 1993], McVeigh found and latched onto the cause that would define the rest of his life. A group of citizens in Waco, Texas — a religious cult called the Branch Davidians — had refused to surrender its weapons to the federal government. A standoff ensued, and McVeigh became obsessed. He read and watched everything he could, then loaded his car with anti-government pamphlets and bumper stickers (“When guns are outlawed, I will become an outlaw”) and drove down to see the action firsthand.

He sold his paraphernalia to other militants and gave interviews to the news media in support of the persecuted.  When, some weeks later, the Waco situation went terribly wrong — the FBI set fire to the compound, killing almost everyone inside — McVeigh watched the news footage and wept.  That injustice became the core of his case against the United States government. Revenge became his life’s mission.

I am not saying that Timothy McVeigh bombed Oklahoma City in 1995 because the Buffalo Bills lost four Super Bowls in a row. (They made it back in 1994 and — incredibly — lost that one too, cementing their reputation as the greatest losers in NFL history.)  Such a claim would be absurd. Human motives are incalculably complex.  But that Buffalo heartbreak was one of the many shadows that fell across McVeigh’s life between his unstable childhood and his perpetration of mass murder in Oklahoma City.

The almost unbelievable failure of the Bills, and the civic pain it caused, amplified his native pain. After McVeigh returned from the Gulf War, his Bills fandom was one of the few positive social networks he was able to plug back into, one of the most powerful, stable, visceral communities to which he unquestionably belonged.  Its failure was devastating, to him and to everyone else in the area.  To this day, even well-adjusted Buffalonians walk around imagining alternate lives in which their team actually won four Super Bowls in a row, becoming arguably the greatest team in NFL history, putting the city on the map in a way it otherwise never could have dreamed of.

Or at least won one Super Bowl, securing a happy little foothold in history. Instead, that 1990s Bills team is remembered as a tragic joke.  It’s easy to pretend that sports doesn’t matter in real life, but for many millions of people, it does.  It matters profoundly, every day.  After Super Bowl XXVII, Timothy McVeigh went looking for somewhere else to be, something else to do — something bigger, more meaningful, more real. Reality had failed him, in so many ways, so he went off to pursue his own fantasy of justice, very far from Buffalo.

Criminal justice fans know that, among other echoes, the Oklahoma City bombing played a key role in federal habeas reforms that still matter profoundly every day to just about everyone serving long prison terms.  But beyond spotlighting one legal echo of the worst home-grown terror mass murder of modern history, I thought this article serves as an interesting and important reminder that the roots of evil and violent behavior are often quite varied and unpredictable.

September 2, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

"Prosecuting in the Shadow of the Jury"

The title of this post is the title of this new paper authored by Anna Offit available via SSRN. Here is its abstract:

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017.  The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice.  This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants.

By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors.  Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States.  Part II describes the ethnographic research method deployed in this case study, noting its unique capacity to document off the record decision-making practices.  Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors' evaluations of their cases, evidence, investigations, and plea agreement discussions.  Part IV considers several explanations for hypothetical jurors' perceived relevance to prosecutors' work beyond their instrumental and strategic value.  Part V concludes that the U.S. Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form.  This finding contributes a novel rationale for fortifying the U.S. jury system and a novel perspective to the study of prosecutorial ethics.

September 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 1, 2018

Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?

The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:

[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.

On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.

Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.

California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.

Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.

Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.

Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...

Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”

Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”

September 1, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"State Legislatures and Solving the Eighth Amendment Ratchet Puzzle"

The title of this post is the title of this paper recently posts to SSRN and authored by Jeffrey Omar Usman. Here is its abstract:

The United States Supreme Court’s evolving standards of decency jurisprudence has come to be understood as having forged an irreversible one-way ratchet moving only toward greater leniency.  The seemingly irreversible ratchet emerges both from practical challenges for state legislatures in pursuing stricter sanctions under the evolving standards of decency framework of analysis and an underlying assumption that moral evolution in criminal justice only moves towards lesser not greater sanctions.

This Article offers a challenge to the latter assumption, the view that moral evolution can only be towards lesser not greater sanctions being imposed. This Article also attempts to provide a solution to the practical problem of the Eight Amendment ratchet puzzle, rendering reversible the seemingly irreversible ratchet.  In doing so, the Article sets forth two critical mechanisms — contingent legislation and the active use of resolutions — which if utilized by state legislatures will enable them to more effectively engage in a constitutional dialogue with the United States Supreme Court in defining societal evolving standards of decency.

September 1, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, August 31, 2018

"Judging Risk"

The title of this post is the title of this article authored by Brandon Garrett and John Monahan now available via SSRN. Here is its abstract:

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process — from policing, to pre-trial, sentencing, corrections, and parole.  As efforts to reduce mass incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in the criminal justice system.  Such work has largely neglected how decisionmakers use risk assessment in practice.  In this Article, we explore the judging of risk assessment.  We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment.  We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines.  Virginia has been hailed as a national model for doing so.  In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable.  Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided.  Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying the content of assessment criteria, the peer review process, and standards for judicial review.  We make recommendations for how to better convey risk assessment information to judges and other decisionmakers, but also how to structure that decisionmaking based on common assumptions and goals.  We argue that judges and lawmakers must revisit the use of risk assessment in practice.  We conclude by setting out a roadmap for use of risk information in criminal justice.  Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

August 31, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, August 30, 2018

Prison chief explains his "non-political approach" to sentencing and prison reforms

John Wetzel, who serves as chair of The Council of State Governments Justice Center, president of the Association of State Correctional Administrators and Secretary of Pennsylvania’s Department of Corrections, has this new Hill commentary under the headline "A non-political approach focused on what works is key to solving prison crisis."  I recommend the piece in full, and here are excerpts:

[W]hile criminal justice reform currently occupies the rarified airspace of being mutually appealing to both sides of the political spectrum at the macro level, there remains a split on whether sentencing reform — the front end of the criminal justice system — should be included as a component of the First Step Act.  As written, the legislation focuses solely on reforms to back end within the Federal Bureau of Prisons.

With the caveat that any improvements to the federal corrections system – even incremental improvements — should be welcomed with open arms, the factual answer is that to realize actual, quantifiable improvement, sentencing reform is essential. It’s easy and common to embrace the notion that recidivism reduction is a back end issue and one owned solely by corrections professionals like me.  This notion is dead wrong.

As a Republican appointed as Secretary of Corrections by a Republican governor (Tom Corbett) and who was asked to continue in the role by a Democratic governor (Tom Wolf), I would argue that good sentencing, and by extension, prison policy, can rise above party politics.

I believe the formula for recidivism reduction is this: Incarcerate the right people for the right amount of time and provide them with the programming they need that specifically addresses the criminogenic factors that led to them committing a crime and, finally, provide the individualized reentry support to start them on a path to good citizenship....

Governor Tom Wolf, in kicking off Pennsylvania’s most recent criminal justice reform initiative, exemplifies the outcomes measure: less crime, fewer victims.  Achieving that goal requires our system to make good decisions every step of the way — from who we incarcerate to how long, including what conditions we incarcerate them in through what supports we offer to restore them to society.

August 30, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

"Criminal Justice Reform Is on the Midterm Ballot"

The title of this post is the title of this notable new New Republic piece by Matt Ford with the subheadline "Andrew Gillum wants to fix his state's broken carceral system.  He's not alone among Democratic nominees for governor." Here are excerpts:  

In his victory speech, Gillum highlighted an issue that’s received short shrift from Florida policymakers in recent years. “Beneath my name is also a desire by the majority of people in this state to see real criminal-justice reform take hold,” he told a crowd of supporters at his Tuesday night victory rally. “The kind of criminal-justice reform which allows people who make a mistake to be able to redeem themselves from that mistake, return to society, have their right to vote, but also have their right to work.”

The message could apply anywhere in the United States. But it carries greater resonance in Florida, which ranks among the most carceral states in the union. While crime has plummeted nationwide since the early 1990s, Florida’s prison population hasn’t seen significant declines. Instead, the number of people serving more than ten years in prison tripled between 1996 and 2017. Lawmakers abolished parole for most crimes by 1993, which requires the state to keep many prisoners behind bars who don’t pose a danger to society. Even today, the state has shirked the broader reform-oriented trend on both the left and the right.

Gillum has campaigned on a platform that could change that. His campaign’s official site touts measures similar to those adopted in some Democratic-led states, like reducing the number of crimes that carry mandatory-minimum sentences and reforming the cash-bail system, which disproportionately harms lower-income Americans. Others are more bold: Gillum went further than his primary opponents and called for the full legalization, rather than just decriminalization, of marijuana. Though he told reporters he is not an opponent of the death penalty, Gillum said he would suspend executions to address concerns about racial disparities....

Other Democratic gubernatorial candidates have also called for sweeping criminal-justice in their states. Georgia’s Stacey Abrams, who would be the first black woman governor ever elected in America, grounds her approach in the experience of her brother Walter, who has bipolar disorder and developed a drug addiction. Instead of receiving treatment, he and tens of thousands of other Americans with major mental illnesses are regularly churned through the criminal justice system for committing crimes of survival like petty theft. Abrams’s platform focuses on improving alternatives to incarceration and bolstering reentry programs to improve the transition back into society.

Maryland’s Ben Jealous, a former president of the NAACP, would go even further. His platform calls for the full legalization of marijuana, the abolition of cash-bail programs, shifting the state’s parole powers away from the governor’s office and toward independent experts, and expunging criminal records for certain crimes to aid reentry and employment efforts. Among his more significant proposals is a state program to investigate prisoners’ claims of innocence. A commission dedicated to that task in North Carolina secured eight exonerations in its first nine years of existence.

A constant fear among reformers is that the political winds could turn back toward tough-on-crime policies after years of favorable weather. It’s unclear whether that will be a problem in Gillum’s contest against DeSantis. Many GOP elected officials have thrown their weight behind criminal-justice reform to varying degrees in recent years, though it’s unclear if DeSantis counts himself among them. His threadbare campaign issues page doesn’t discuss the issue and his campaign staff hasn’t provided details on the matter to local media outlets. Like Trump, though, he has run as a law-and-order candidate, and seems more likely to emulate the president’s attack on Gillum as a supposed enabler of crime.

In addition to being glad to see this emphasis on some candidates' emphasis on criminal justice reform, the headline of this piece could also be used to describe the significant array of criminal-justice-related ballot initiatives coming before voters this fall. The article does mention that Florida voters will consider a constitutional amendment to eliminate felon disenfranchisement for most former offenders. In addition, Michigan and North Dakota voters will consider full marijuana legalization and Missouri and Utah voters will be considering medical marijuana initiatives. And in my own Ohio, as noted in this prior post, an interesting and intricate drug sentencing and prison reform initiative is on the November 2018 ballot. (Plug: The Drug Enforcement and Policy Center, has this planned series of events to provide a venue for informed discussion of the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment.)

August 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Is Jeff Sessions' opposition to modest sentencing reforms going to cost him his job as Attorney General?

The question in the title of this post — which I would answer "I hope so" — is prompted by this Politico article fully headlined "Trump personally lobbying GOP senators to flip on Sessions: Opposition to the attorney general's firing, long seen as a red line by lawmakers, has softened in recent days."  Here is an excerpt from the piece of note to sentencing fans:

The president, who has spent a year and a half fulminating against his attorney general in public, finally got traction on Capitol Hill thanks to the growing frustration of a handful of GOP senators with their former colleague – most importantly, Judiciary Chairman Chuck Grassley and South Carolina’s Lindsey Graham, who have been irritated by Sessions’ opposition to a criminal justice reform bill they support, according to interviews with more than a half-dozen congressional GOP aides, Trump advisers, and Republicans close to the White House....

Over the past week, Trump has belittled Sessions in conversations with several Republican senators, including Graham, and the idea of dismissing him no longer provokes the political anxiety it once did.

Along with Graham and Grassley, Sessions has also alienated presidential son-in-law and adviser Jared Kushner, the chief White House proponent of the Graham-Grassley approach on criminal justice reform, as well as his wife, Ivanka Trump.

After a meeting last week that included Trump, Sessions and Kushner, the White House and McConnell delayed action on the issue until after the midterms. Grassley and other backers of the effort left the meeting hopeful for progress at that point. But Sessions’ office put out a sharply negative statement that suggested the president had come out against any sentencing reform in the legislation.

Holly Harris, a longtime Kentucky GOP strategist pushing for a reform deal from the helm of the nonprofit Justice Action Network, blasted Sessions for an “absolute mischaracterization” of the White Houses stance on the issue. “DOJ is making so many enemies in so many places now that I actually think it’s going to help our legislation. I think they’ve gone way too far,” Harris said, describing Sessions’ actions on the issue as “off the rails.”

The criminal justice issue has been an ongoing sore point between Sessions and Grassley. The House passed a narrower bill in May that doesn’t include changes to sentencing requirements — something Sessions strongly opposes but that Grassley and others, including Graham, have insisted on adding.

When Sessions spoke out against a broader criminal justice bill that the Judiciary Committee passed in February, Grassley publicly dressed him down. “Look at how hard it was for me to get him through committee in the United States Senate,” the senator said then. “And look at, when the president was going to fire him, I went to his defense.”

No longer. Though Grassley had previously said he could not schedule hearing time to confirm a new attorney general, he changed his tune last week. “I do have time for hearings on nominees that the president might send up here that I didn’t have last year,” Grassley said last week.

Prior related post:

UPDATE: This new Bloomberg piece suggests AG Sessions will be in his job at least for the next few month: "Trump Says He’ll Keep Sessions Until November Despite ‘Illegal’ Probe"

August 30, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Wednesday, August 29, 2018

Texas jury hands down 15-year prison term after convicting police officer of murder for shooting unarmed teen

As reported by CNN here under the headline "Ex-officer sentenced to 15 years in Texas teen's shooting death," a Texas jury that handed down a notable murder conviction yesterday followed up today with a notable sentencing determination. Here are some details:

A former Texas police officer was sentenced to 15 years in prison Wednesday for the shooting death of an unarmed black teen last year in the Dallas suburbs.

A jury convicted former Balch Springs Officer Roy Oliver, 38, of murder on Tuesday for killing 15-year-old Jordan Edwards.  Jurors returned to court Wednesday for his sentencing, where prosecutors sought at least 60 years, while the defense argued for 20 years or less.

Dallas County District Attorney Faith Johnson called Oliver a "killer in blue" who violated his oath to protect citizens.  Her colleague, Michael Snipes, made the reference to Mr. Hyde, the violent side of Dr. Jekyll in Robert Louis Stevenson's novella.  Defense attorney Bob Gill argued that his client, who fired into a vehicle carrying Edwards had to decide quickly how best to protect his partner.

The rare guilty verdict in the trial of a police officer stunned relatives, prompting gasps and sobs in the courtroom. Most police-involved shooting deaths, such as Philando Castile in Minnesota and Alton Sterling in Louisiana, have ended in acquittals or no charges despite national protests condemning police brutality.  "We don't want another parent to have to go through what this family has had to deal with," Jordan's family attorney, Daryl Washington, said on Tuesday.  "This case is not just about Jordan. It's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every African-American... who have been killed and who have not gotten justice."...

Convictions such as Oliver's are still a rarity mostly because when an officer says the person flashed a gun or made a sudden move, jurors tend to side with them, said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.  "At the end of day, officers in their badge and uniform enjoy the benefit of the doubt," Clarke said last year....

Few police officers face trial in shooting deaths, and even fewer are convicted.  In December, former South Carolina officer Michael Slager was sentenced to 20 years in federal prison in the 2015 shooting death of Walter Scott. Slager's 2016 state murder trial ended in a mistrial.

August 29, 2018 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (2)