Tuesday, September 19, 2017

Pushing back on criticisms of AG Sessions returning Justice Department to "failed mindset of its past"

In this post last week, I noted the National Review commentary authored by two former US Attorneys which focused on the Sessions charging/sentencing memo to complain that "Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past."  I now have just noticed that Andrew McCarthy has penned this lengthy response at National Review under the headline "On Criminal Justice, Sessions Is Returning DOJ to the Rule of Law."  Here is an excerpt:

The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”

This is so wrongheaded, it’s tough to decide where to begin.  In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual).  It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.

The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.... Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself.  Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too.  But it is not enforcement of the law.  It is executive imperialism....

Criminal statutes can be modified by legislation, which reflects the judgment of the people’s representatives.  The fact that they have not been, notwithstanding the purported “consensus” for “reform,” suggests that the public is not convinced of the need for such modification — or, perhaps, that our representatives grasp the need for a check on the judges. Unable to change the law, the “reformers” are reduced to arguing that justice happens only when prosecutors ignore the law.  If you’re Jeff Sessions and you say, “No, you know, I think we’ll have them follow the law,” you’re a Neanderthal....

Vance and Stewart have a point when they object to Attorney General Sessions’s unfortunate fondness for what they call “adoptive forfeiture policies.”  As we at National Review have contended (as has Justice Clarence Thomas, Kevin Williamson reminds us), civil asset forfeitures are property seizures without due process of law.  A federal spoils system incentivizes police to grab with both hands. Regardless of their effectiveness against drug lords, such forfeitures should be halted — the police should be required to proceed by criminal forfeiture and prosecution, with the due-process safeguards that entails. But that is because civil forfeitures offend the Constitution, not because they feed a left-wing narrative about fractured police–community relations.

Attorney General Sessions is enforcing the law, and doing so within a noble Justice Department tradition of giving force to Congress’s expression of the public will.  He is not altering the law by executive fiat, the preference of President Obama, Attorneys General Holder and Lynch, Professor Vance, Mr. Stewart, and the bipartisan minority they portray as a “consensus.”

There is a great deal I don’t like about the legal system either.  Statist government has enacted far too many laws, such that the federal government has criminalized too much of what used to be the province of state regulation — or unregulated private behavior.  The drug laws do have severe penalties and may work injustice in some cases — although fewer than Vance and Stewart suggest: Though the hands of federal judges are tied by mandatory minimums, they are not bound to follow advisory sentencing guidelines or prosecutorial recommendations.  I would certainly be open to mitigating penalties in exchange for thinning out the federal penal code and transferring areas of enforcement responsibility back to the states.  The point, however, is that this has to be done by legislation, not by executive autocrats under a stealthy distortion of prosecutorial discretion.

If Professor Vance and Mr. Stewart are right that we are in a new era, if the public has truly been won over to the notion that incarcerating criminals is counterproductive, the next step is very simple: Pass laws that amend the penal code.  In the meantime, the Justice Department’s job is to enforce the laws we have.  As Attorney General Sessions recognizes, that means charging the most serious, readily provable offense.

There is more to this commentary, and it merits a full read.  I have emphasized the points about the rule of law and the distinct roles of the distinct branches because it stands as the most conceptually principled defense of the Sessions Memo on prosecutorial policies.  At the same time, this defense lack a bit of nuance in failing to acknowledge that a large measure of congressional dysfunction, rather than the obvious will of the people, is precluding amendments to the federal penal code.

In red and blue states nationwide for nearly a decade, in various initiative votes from California to Oklahoma and from Alaska to Florida, the American people and their representative have been amending penal codes to be less harsh in many ways (especially to nonviolent offenders and marijuana users).  But very little similar work has gotten done in Congress largely because leadership will not even allow reform bills to come up for a full vote.  There are good reasons to think we could and would get many amendments to the federal penal code if up-or-down votes were allowed on various leading reform proposals --- e.g., the GOP-controlled Senate Judiciary Committee voted 75% in support of a massive sentencing reform bill in October 2015.  In light of the reality that significant federal sentencing reform seems to gets significant majority support when it gets a vote, one cannot quite say that full enforcement of existing federal criminal laws is fully compliant with the will of the people.

September 19, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Might Justice Gorsuch juice up the SCOTUS sentencing docket ... perhaps starting with IAC case from Arkansas?

The SCOTUS sentencing docket has felt relatively muted to me in recent years, due in part to transition issues after Justice Scalia's unexpected death and due in part to Apprendi and Booker jurisprudence no longer garnering much of the Court's attention.  Of course, the application of Eighth Amendment doctrines after Miller and Graham and vagueness doctrines after Johnson can and will continue to provide grist for the SCOTUS sentencing mill, and it also still seems no SCOTUS Term would be complete without a few capital cases on the docket.  Nevertheless, with SCOTUS soon to have its “long conference” in which the Justices will consider all the cert petitions that stacked up over the summer, I find myself not really expecting exciting cert grants on many (or perhaps any) issues that will rev up sentencing fans.

That said, and as the title of this post suggests, perhaps new personnel at SCOTUS could mean some new juice for the SCOTUS sentencing docket.  As noted in this post from May, Justice Gorsuch has opted out of the cert pool, and I suspect that could lead him to be more engaged with criminal cases that may get short shrift through the cert pool screening process. In addition, as detailed in this prior post, Justice Gorsuch had a remarkable little concurrence in a federal mandatory-minimum sentencing case, Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here), right before all the Justices left for summer vacation.  Though these tea leaves hardly ensure that the new guy is a vote for cert in all the sentencing cases I find interesting, it remains fun to speculate whether Justice Gorsuch's libertarian-leaning instincts might make him more inclined to vote to review petitions of criminal defendants than some of his colleagues.

If Justice Gorsuch is looking for cert worthy sentencing cases, Carissa Byrne Hessick tees one up in this new post over at PrawfsBlawg, titled "Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing."  Here is how that posting gets started:

Earlier this summer, I helped write a cert petition for the US Supreme Court.  The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf.  Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001).  And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards.  And several federal district courts have started to question how they ought to assess these claims.

September 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Noting judicial resistance (and legal questions) as Ohio law pushes judges to avoid state prison sentences for certain offenders

This fascinating article in the Columbus Dispatch, headlined "Some Ohio counties leery of Kasich program to divert low-level offenders from prison," highlights a novel and controversial new  sentencing law in Ohio that some local judges and official plainly dislike. Here are excerpts:

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.  A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.  But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, low-level felons to probation, local jails or community-based programs.  In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.  Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.  Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.  “Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year....

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.  Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.  Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer. “The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release....

Under the program, offenders convicted of fifth-degree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense.  The state correction department estimated that 4,000 such offenders were sent to prison last year.  If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits. “I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said.  “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”  Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program....  A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.  The Ohio Constitution, he said, requires “uniform operation” of all laws.  That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.  “I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.  His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

September 18, 2017 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

The title of this post is the title of this notable new paper authored by Carlos Berdejó available via SSRN. Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

September 16, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

"Parental Arrest, Incarceration and the Outcomes of Their Children"

The title of this post is the title of this paper recently posted to SSRN authored by Stephen Billings. Here is the abstract:

Parental arrest and incarceration represents a profound and traumatic experience for almost 3 million children in the U.S. and scholars in sociology and criminology consistently find negative impacts of parental incarceration on children across a range of academic and behavioral outcomes.  Unfortunately, the challenge of disentangling parental incarceration from other parenting attributes has limited causal inference in this literature.

The research presented here provides compelling evidence that parental arrest coincides with negative outcomes for children, but that the incarceration of a parent may have short term benefits for the child.  Results suggest that incarceration removes negative role models and leads to changes in a child's home environment.

September 16, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, September 15, 2017

Deputy AG Rosenstein hints at possible changes to federal corporate-crime prosecution policies

As reported in this Politico piece, the "Justice Department's No. 2 official indicated Thursday that the federal government's policy on prosecuting corporate crime is under review and he suggested that changes to the department's stance on the issue are coming." Here is more:

"It’s under review and I anticipate that there may be some change to the policy on corporate prosecutions," Deputy Attorney General Rod Rosenstein said Thursday during a question-and-answer session following a speech at the conservative Heritage Foundation in Washington. "I don’t have any announcement about that today, but I do anticipate that we may in the near future make an announcement about what changes we’re going to make to corporate fraud principles."

The department's current policy, announced by Deputy Attorney General Sally Yates in September 2015, aimed to increase prosecutions of individuals responsible for criminal acts committed during work for corporations. The so-called Yates memo was seen in part as a reaction to criticism of the anemic number of prosecutions of individuals on Wall Street or at big banks for crimes related to the economic meltdown in 2008.

Rosenstein did not indicate what portions of the Yates memo are likely to be overhauled or halted. He also said that he favors prosecutions of individuals in appropriate cases. "Corporations, of course, don’t go to prison. They do pay a fine," Rosenstein said. "The issue is can you effectively deter corporate crime by prosecuting corporations or do you in some circumstances need to prosecute individuals. I think you do."

DAG Rosenstein also talked a bit about possible changes to DOJ policies on marijuana enforcement, and I cover those comments here over at Marijuana Law, Policy and Reform.

September 15, 2017 in Criminal justice in the Trump Administration, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Advocacy for the "the smart way to get 'tough' about crime"

Brandon Garrett has this new CNN commentary discussing some of the themes in his new book titled "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is hoe it starts and ends:

It is time to retire the phrase "tough on crime."  There is nothing tough about the harsh punishments that contributed to mass incarceration in this country.  In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime.  Instead of being "tough," we need to be smart.

Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration.  Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction.  Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.

And crime continues to fall.  According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities.  This year is projected to be the year with the second-lowest crime rate in 25 years.  Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.

So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up.  Even the localized crime bumps in a handful of cities seem to be subsiding.  We don't need a new war on crime when we are winning the peace....

Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners.  Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us.  Reform is working and crime is still falling.  We need to push it farther to shrink our bloated criminal justice system.  That is the smart way to get "tough" about crime.

September 15, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 14, 2017

New York Times reporting that Prez Trump back in May urged AG Sessions to resign then rejected his letter of resignation

This new New York Times article reports on notable details of the history of recent tensions between Prez Trump and AG Sessions under the headline "Trump Humiliated Jeff Sessions After Mueller Appointment."  Here is how it gets started:

Shortly after learning in May that a special counsel had been appointed to investigate links between his campaign associates and Russia, President Trump berated Attorney General Jeff Sessions in an Oval Office meeting and said he should resign, according to current and former administration officials and others briefed on the matter.

The president blamed the appointment of the special counsel, Robert S. Mueller III, on Mr. Sessions’s decision to recuse himself from the Justice Department’s Russia investigation — a move Mr. Trump believes was the moment his administration effectively lost control over the inquiry. Accusing Mr. Sessions of “disloyalty,” Mr. Trump unleashed a string of insults on his attorney general.

Ashen and emotional, Mr. Sessions told the president he would quit and sent a resignation letter to the White House, according to four people who were told details of the meeting. Mr. Sessions would later tell associates that the demeaning way the president addressed him was the most humiliating experience in decades of public life.

The Oval Office meeting, details of which have not previously been reported, shows the intensity of Mr. Trump’s emotions as the Russia investigation gained steam and how he appeared to immediately see Mr. Mueller’s appointment as a looming problem for his administration. It also illustrates the depth of antipathy Mr. Trump has had for Mr. Sessions — one of his earliest campaign supporters — and how the president interprets “disloyalty” within his circle of advisers.

Mr. Trump ended up rejecting Mr. Sessions’s May resignation letter after senior members of his administration argued that dismissing the attorney general would only create more problems for a president who had already fired an F.B.I. director and a national security adviser. Mr. Trump once again, in July, told aides he wanted to remove Mr. Sessions, but for a second time didn’t take action.

The relationship between the two men has improved marginally since midsummer, as Mr. Sessions has made a public display of hunting for the leakers among the administration’s national security officials. His allies said that despite the humiliation, the attorney general has stayed in the job because he sees a “once-in-a-lifetime” opportunity as the nation’s top law enforcement official to toughen the country’s immigration policies.

September 14, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

"Fragmentation and Democracy in the Constitutional Law of Punishment"

The title of this post is the title of this recently published paper that I recently noticed authored by Richard Bierschbach.  Here is its abstract:

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy.  But the relationship of such principles to democracy in criminal punishment has received less attention.  This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice.  On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern.  At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others.  Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits.  But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment.  The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

September 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Jared Kushner convening White House meeting on federal prison programming and reentry issues

As reported in this Washington Post piece, headlined "Kushner to gather bipartisan group to come up with ideas for federal prisons," an event scheduled for today in the White House suggests criminal justice reform issues are not completely dormant at the federal level. Here are the details:

President Trump’s son-in-law and senior adviser, Jared Kushner, will convene a roundtable Thursday at the White House to gather recommendations for improving mentoring and job training in federal prisons, a departure from the administration’s focus on more punitive crime-fighting measures.  A bipartisan group of about two dozen elected officials, religious leaders and business leaders were invited to the first major criminal justice-related event held by the Kushner-led Office of American Innovation, which in recent months has brought together technology executives to search for ways to make government more efficient.

Kushner’s interest in corrections policy is personal: His father, Charles Kushner, a real estate executive, was sentenced in 2005 to two years in federal prison after pleading guilty to tax evasion. Jared Kushner has said the experience gave him a glimpse of the challenges inmates and their families face in and outside of prison.  “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner told The Washington Post in a telephone interview.  “We’re not looking to train better criminals.”

The event, which had not been officially announced as of Wednesday morning, comes after a months-long push by Trump and Attorney General Jeff Sessions for more aggressive prosecution of drug offenders and illegal immigrants.  In May, Sessions jettisoned an Obama administration policy that instructed federal prosecutors to avoid charging low-level criminals with drug offenses that would trigger severe mandatory-minimum sentences, a shift projected to boost the prison population.  Those efforts are at odds with a growing consensus that the mandatory-minimum sentences that proliferated during the “war on drugs” fueled crowded, costly prisons that unduly burden taxpayers and do not improve public safety.  A number of states, including several led by Republicans, are curbing their inmate populations and even closing prisons by reducing mandatory-minimum sentences and expanding parole and probation.

Kushner’s private discussions in recent months with members of Congress and outside groups have included sentencing reform, according to participants, but Thursday’s meeting is more narrowly focused on preparing inmates to reenter society.  Neither Sessions nor his newly appointed Bureau of Prisons director, retired Army Gen. Mark S. Inch, will attend, although some Justice Department officials are expected to participate.

Criminal justice advocates invited to the roundtable said the gathering is a positive first step, and they called for expanding drug and mental health treatment, vocational training, mentoring programs and placement in halfway houses. “Regardless of what you think about who goes to prison or how long they need to be there, most people come out eventually, so let’s make sure they are better off than when they came in,” said Mark Holden, general counsel for Koch Industries, a leading conservative proponent of reducing incarceration levels.  “Of course I want to see the dialogue on criminal justice issues continue and looked at comprehensively.  We need a holistic solution.”

The federal prison population is expected to grow by 2 percent over the coming year, rising by 4,171 inmates, to a total of 191,493, and reversing the downward trend of the past four years, according to the Trump administration’s proposed budget.  Yet the proposal calls for a 14 percent reduction in federal prison jobs, including 1,850 fewer corrections officers.  Many of those positions are vacant.  The Justice Department is seeking $10 million to cover the costs of food, health care, transportation and programs for the additional inmates, but it’s unclear how much money would be allocated to education and vocational training....

Asked about federal funding, Kushner said, “We’re not at a place where we are prescribing solutions. We’re bringing people together and generating ideas. If prisoner reentry programs are successfully executed, it’s usually a good investment.”  A request for recommendations from participants before the conference said, “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

On Capitol Hill, Rep. Douglas A. Collins (R-Ga.) has introduced a bill that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by House Judiciary Chairman Bob Goodlatte (R-Va.), the measure requests $250 million over the next five years for prison education programs.

Among the elected officials slated to participate in Thursday’s program are Housing and Urban Development Secretary Ben Carson, Labor Secretary Alex Acosta, Sen. John Cornyn (R-Tex.), Sen. Sheldon Whitehouse (D-R.I.), and Republican Govs. Matt Bevin of Kentucky and Sam Brownback of Kansas.

September 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Wednesday, September 13, 2017

In sentencing filing, Anthony Weiner asks for probation and community service after guilty plea to transferring obscene material to a minor

As reported in this new Bloomberg piece, "Anthony Weiner, the former congressman and New York mayoral candidate whose career and personal life were wrecked in a series of sexting scandals, asked a judge for leniency when he’s sentenced later this month." Here is more about his sentencing filing and what prompts it:

Weiner pleaded guilty in May to sending sexually explicit messages to a 15-year-old girl, admitting to a single criminal count of transmitting obscene material to a minor. The guilty plea capped a stunning downfall that played a major role in the final days of the 2016 presidential election.

In a court filing late Wednesday, Weiner asked for probation and community service.  “In sum, a term of imprisonment would bring Anthony’s indisputably successful treatment for the sickness underlying his crime to an immediate and complete halt, and separate Anthony from the son who has motivated his recovery,” his attorneys wrote in the sentencing memo.

“Given the unusual circumstances of this offense and the ability of a sentence without incarceration to impose just and meaningful punishment while permitting continued treatment, a non-incarceratory sentence of the kind proposed above would be ‘sufficient but not greater than necessary’ to satisfy the goals of sentencing.”

Weiner faces as much as 10 years in prison when he’s sentenced Sept. 25. As part of a plea deal, prosecutors will seek a term of 21 months to 27 months, which isn’t binding on the sentencing judge. Weiner must register as a sex offender and will forfeit his iPhone. An FBI investigation into Weiner’s sexually explicit messages turned up emails that had been sent to his wife, Huma Abedin, then a top aide to Democratic presidential candidate Hillary Clinton....

Weiner “has already been punished in a meaningful way by the government, just not in a judicially sanctioned manner,” his lawyers wrote in the memo.  “What was supposed to be a confidential grand jury investigation into a personal offense was leaked by ‘law enforcement sources’ and then improperly injected into the presidential election by the then-FBI director.”

Prior related post:

September 13, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (5)

"Erasing the Mark of a Criminal Past: Ex-Offenders’ Expectations and Experiences with Record Clearance"

The title of this post is the title of this paper recently posted to SSRN authored by Ericka Adams, Elsa Chen and Rosella Chapman. Here is its abstract:

Through the process of record clearance, ex-offenders can have certain minor convictions removed from their criminal record or designated as expunged.  This study analyzes data gathered from semi-structured interviews with 40 past offenders to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime.

The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new identity.  These benefits accrue from both the outcomes of the record clearance process and from the process itself.  Increased availability of inexpensive or free opportunities for expungement can contribute to more successful reintegration of ex-offenders into the workforce, families, and communities.  Not only would this improve quality of life for the ex-offenders, but it could also increase public safety and reduce public spending.

September 13, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (4)

Potential controversy brewing after Ohio completes its second execution of 2017

This updated AP report on Ohio's execution completed this morning suggest that another lethal injection controversy could be brewing in the Buckeye State.  Here are excerpts from the AP report providing the basics (which I have placed in temporal order):

An Ohio killer of two people sang a Christian hymn and quoted the Bible in the minutes before his death.

The last words of Gary Otte were derived from a Bible account of Jesus Christ's crucifixion. He said: "Father, forgive them for they know not what they're doing. Amen." He earlier professed his love for his family, said he was sorry and sighed deeply, then began singing "The Greatest Thing," with such words as "I want to know you Lord."

His singing stopped at 10:39, before he gave a thumbs-up sign. His stomach rose and fell several times, resumed after a consciousness check by guards at 10:42, then appeared to fall still a couple minutes later. The time of death for the 45-year-old Otte was 10:54 a.m.

Relatives of his two 1992 victims were among the witnesses. 

A federal public defender who witnessed the execution of a condemned Ohio killer of two says she thinks mistakes were made.  Defense attorney Carol Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Gary Otte's (OH'-teez) chest indicated he was suffering a phenomenon known as air hunger.

A spokeswoman for Ohio's prison system says the state followed proper security protocols when a lawyer witnessing an execution tried to leave the witness room.  JoEllen Smith, of the Ohio Department of Rehabilitation and Correction, says once attorney Carol Wright's intention and identity were confirmed she was allowed to leave.

Smith said Wednesday's execution of condemned killer Gary Otte was carried out in accordance with prison policy and without complication.

Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Otte's chest indicated he was suffering a phenomenon known as air hunger.  Wright says she believe mistakes were made. She reached the judge overseeing Otte's case, but it was too late.

UPDATE: This local article provides some expanded details on the concerns of Otte's attorney under the headline "Attorney for executed Parma murderer says she believes inmate suffered pain during lethal injection."

September 13, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (12)

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence."  Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye.  While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct.  The article challenges the media for its role in inflaming public opinion about the case.  While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media.  Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk.  The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

September 13, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Former US Attorneys lament AG Sessions' charging memo as returning Justice Department to "failed mindset of its past"

This notable new National Review commentary, headlined "On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past," is authored by Joyce Vance, the former US Attorney for the Northern District of Alabama, and Carter Stewart, the former U.S. attorney for the Southern District of Ohio.  Here are excerpts, with some commentary to follow:

True to form, Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past.  In implementing his own tough-on-crime mantra, he has required prosecutors, in virtually all cases, to charge the most serious offenses and ask for the lengthiest prison sentences.

Americans have seen this one-size-fits-all policy in action before. It doesn’t work. Today’s America is often a world where everyone adheres to their confirmed views and there is little exchange of information and ideas across political divides. So, when the rare issue comes along that generates a bipartisan consensus, it should be worth seriously considering.

Criminal-justice reform is one of those issues.  Yet Attorney General Sessions continues to roll back previously instituted changes that were beginning to reduce America’s prison population, the justice system’s costs, and crime.  He is doing so despite the consensus that produced those changes. We should not let this rare opportunity to reform a badly broken criminal-justice system fade away, nor should we permit the consensus on reform to shatter under the consuming cover of national scandal.

Sessions’s charging policy memo, editorials, and planned state tour to push for a crackdown on crime all resemble ineffective and damaging criminal-justice policies that were imposed in 2003. Although those policies’ stated goal was originally to create nationwide uniformity in the justice system, they resulted in the proliferation of questionable prosecutions, and the Bureau of Prisons’ population swelled to its highest level in history, consuming almost one-third of the Department of Justice’s annual budget. One side effect of this fiasco that lingers today is the broken relationship between police departments and the communities they are sworn to serve and protect. The attorney general is aggravating that tension with his recent revival of adoptive forfeiture policies, giving local and state law enforcement a federal benediction to seize the property of suspected criminals. Distrust impedes community cooperation with law enforcement, and increased incarceration rates do little to decrease crime.

The excessive reliance on arrests and extended incarceration was unsustainable, it disparately impacted racial minorities and the poor, and it had a negligible impact on public safety.  People leaving prison are too often unable to find jobs because of their criminal records, and two-thirds of them re-offend within three years. It has become obvious that we must do more than just incarcerate people to make our communities safer.

That’s why, in 2013, DOJ promulgated the “Smart on Crime” initiative, which returned charging discretion to federal prosecutors and directed them to use a three-pronged approach: implement priorities for prosecuting the most serious crimes, advance prevention programs, and develop strategies to help people successfully re-enter the community after they’ve served their time. At its core, this approach recognized that each criminal defendant is a person, often with families and friends who care deeply about them....

“Tough on crime” strategies that rely on lengthy prison sentences and property seizure may permit politicians to sharpen their image in the eyes of voters, but they run afoul of justice and fail to deliver results. At the same time DOJ was modernizing its criminal-justice polices, many states were doing so as well.  Since 2007, 23 states have reformed their sentencing laws to focus law-enforcement resources on the most dangerous crimes. Often, federal law-enforcement officials worked hand in hand with their state and local counterparts to achieve progress. In Alabama, the legislature created a new felony category for the lowest level of drug and property offenses, sending offenders to less expensive and more effective community corrections programs instead of prison.  Ohio eliminated the disparity in criminal penalties between crack and powder cocaine offenses and raised the threshold requirements for felony-theft sentencing. As a result of similar policies, Texas has closed three prisons since 2005 and still enjoyed a 29 percent drop in crime. Georgia and North Carolina have adopted justice-reinvestment programs and had similar success.

As former U.S. Attorneys, we know firsthand that families across our country care about the safety of their communities above all else. We worked hand in hand with law enforcement, members of the community, and victims of crime to pursue those individuals who were the most dangerous. But we also know that an approach that uniformly imposes the harshest penalties on everyone risks damaging community trust and cooperation for generations, jeopardizing safety as a whole. Rehashing tough-on-crime policies based on disproved assumptions is a recipe for failure. The Department of Justice should move forward with its Smart on Crime public-safety and criminal-justice policies, using a proven approach that has reduced prison populations, costs, and crime in states that have implemented it. Justice is about more than just putting people in prison.

This commentary hits many of the themes now common to advocacy for smart-on-crime approaches over tough-on-crime approaches to crime and punishment. But it fails to grapple with the (too simple) reality that nationwide crime rates went down dramatically from 1991 to 2014 when tough-on-crime approaches defined much of the Justice Departments work and that crime rates started moving up significantly not long after DOJ promulgated its "Smart on Crime" initiative. Because of these crime data, AG Sessions and many others likely do not accept the assertion in this commentary that tough-on-crime postures by DOJ have a "negligible impact on public safety." Thanks to prior crime declines and recent crime increases, I think they actually believe tough-on-crime approaches, at least at the federal level, are absolutely essential to public safety.  Put differently, I suspect that AG Sessions now sees smart-on-crime approaches as the "failed mindset" and thus he seems very unlikely to be moved by these kinds of commentaries.

September 13, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, September 12, 2017

So much to read about so many elements of the opioid epidemic

I have a hard time keeping up with all the dimensions of the opioid epidemic.  And, of course, the epidemic is fundamentally a public health crisis more than a sentencing issue.  Nevertheless, I find myself drawn to reading all sort of pieces about the epidemic, and here are links and headlines that have caught my eye recently:

September 12, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (3)

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high.  This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders."  Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans.  Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.”  The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake.  The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release.  In the 24 years it has existed, not a single “patient” has ever been fully released.  There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness.  In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal.  They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.”  The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear.  The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record.  More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study.  Simple decency and perhaps more important, intellectual honesty demands better.

A few prior recent related posts:

September 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Looking at criminal justice reform through the lens of federal budget debates

Last week the Center for American Progress (CAP) released this advocacy document titled "Congress Can Lead on Criminal Justice Reform Through Funding Choices." Though the document is already a bit dated now that a stop-gap funding bill went through Congress late last week, this CAP issue brief still provides a useful primer on how budgets passed by Congress always play a role in criminal justice reform at both the federal and state level. Here is how this document gets started:

As Congress returns from the August recess, one of its most pressing goals will be to pass a series of appropriations bills to fund the federal government for fiscal year 2018, which begins October 1, 2017. Criminal justice stakeholders across the country are paying particularly close attention to the FY 2018 Commerce, Justice and Science (CJS) appropriations bill. This bill not only controls the funding levels for federal criminal justice entities but also sets the amounts available to the U.S. Department of Justice (DOJ) for grants to state and local government counterparts as well as researchers and service providers.

The importance of federal criminal justice resources has become even more pronounced in recent years as the movement to reform criminal justice systems and practices has gained steam. While comprehensive efforts to reduce the size of the federal criminal justice system face headwinds from the Trump administration’s “law and order” policies, congressional leaders have the opportunity to provide federal leadership on this issue through their funding choices.  After all, the overwhelming majority of the country’s total incarcerated population — approximately 90 percent — is in state and local systems, not the federal system.

The House and Senate appropriations committees have marked up their respective appropriations bills, providing almost $2.2 billion for the DOJ’s discretionary grant programs for FY 2018. These grant programs represent the primary assistance that the federal government makes available to state and local public safety agencies each year.  They also are one of the federal government’s main vehicle for supporting, enhancing, and in some cases influencing state and local criminal justice agencies.  The two appropriations bills are likely headed to a floor vote in September.  The bills are different from each other, but both are certainly a dramatic improvement on the budget proposed by President Trump, which cuts DOJ’s discretionary grant funding by $310 million.

Congress should ensure that funding priorities are aligned to address the critical and emerging criminal justice issues facing communities today.  This issue brief examines four such important funding areas: 1) promote diversion into mental health and substance use treatment instead of incarceration; 2) reduce incarceration rates and levels; 3) eliminate the criminalization of poverty; and 4) increase support for indigent defense.

September 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

"Black Disparities in Youth Incarceration: African Americans 5X More Likely than Whites to be Held"

The title of this post is the title of this new fact sheet produced by The Sentencing Project. Here is some of the text to go along with its state-by-state charts:

Black youth were more than five times as likely to be detained or committed compared to white youth, according to data from the Department of Justice collected in October 2015 and recently released.  Racial and ethnic disparities have long-plagued juvenile justice systems nationwide, and the new data show the problem is increasing.  In 2001, black youth were four times as likely as whites to be incarcerated.

Juvenile facilities, including 1,800 residential treatment centers, detention centers, training schools, and juvenile jails and prisons held 48,043 youth as of October 2015.  Forty-four percent of these youth were African American, despite the fact that African Americans comprise only 16 percent of all youth in the United States.  African American youth are more likely to be in custody than white youth in every state but one, Hawaii.

Between 2001 and 2015, overall juvenile placements fell by 54 percent.  However, white youth placements have declined faster than black youth placements, resulting in a worsening of already significant racial disparity.

Nationally, the youth rate of incarceration was 152 per 100,000.  Black youth placement rate was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. Overall, the racial disparity between black and white youth in custody increased 22 percent since 2001.  Racial disparities grew in 37 states and decreased in 13.

In six states, African American youth are at least 10 times as likely to be held in placement as are white youth: New Jersey, Wisconsin, Montana, Delaware, Connecticut, and Massachusetts.

September 12, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 11, 2017

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

September 11, 2017 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Notable accounting and review of federal collateral consequences facing nonviolent drug offenders

RId15_image2Last week the Government Accountability Office released this interesting new report titled "Nonviolent Drug Convictions: Stakeholders' Views on Potential Actions to Address Collateral Consequences." The 47-page report is worth a full read, and this highlights page provides these highlights (and the graphic reprinted here):

Collateral consequences are the penalties and disadvantages that can be imposed upon an individual with a criminal conviction, in addition to those directly associated with a sentence (such as a fine, prison, or community service). GAO’s review of the American Bar Association’s (ABA) National Inventory of the Collateral Consequences of Conviction (NICCC) found that, in federal laws and regulations, there are 641 collateral consequences that can be triggered by nonviolent drug convictions (NVDC).  For example, individuals with NVDC may be ineligible for certain professional licenses and federal housing assistance.  The NICCC data that GAO reviewed indicate that these 641 collateral consequences can limit many aspects of an individual’s life, such as employment, business licenses, education, and government benefits.  In addition, GAO also found that the NICCC identified that 497 (78 percent) of the 641 collateral consequences can potentially last a lifetime.

Of the 641 federal collateral consequences for NVDC, GAO found that the NICCC identified 131 (20 percent) as having a relief mechanism in a related law or regulation that prescribed how an individual could potentially obtain relief from the consequence.  For example, individuals may be relieved if they successfully complete a drug rehabilitation program or receive a pardon.

Thirteen of the 14 stakeholders GAO interviewed said the federal government should consider taking action to reduce the severity of (i.e., mitigate) federal collateral consequences for NVDC, such as conducting a comprehensive review of these collateral consequences and implementing a new relief mechanism.  Additional mitigation could, according to some stakeholders, help individuals with NVDC obtain employment, housing, or education; and almost all the stakeholders said mitigation could potentially reduce the likelihood of reoffending.  At the same time, federal collateral consequences can serve public safety functions and protect government interests.  Some stakeholders cautioned that federal action should strike the appropriate balance between preserving collateral consequences that provide a public safety benefit, and addressing consequences that can cause unnecessary burdens and potentially increase the likelihood that individuals with NVDC reoffend.

September 11, 2017 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing | Permalink | Comments (1)

"Guideposts for the Era of Smart Decarceration"

Download (5)The title of this post is the title of this notable document produced by the Smart Decarceration Initiative and authored by Carrie Pettus-Davis, Matthew Epperson and Annie Grier. (The document was released earlier this year, but was just recently brought to my attention.)  Here is part of its executive summary:

Reducing the United States’ overreliance on incarceration requires deliberate action. Proponents of smart decarceration recognize the need for clearly articulated areas of targeted intervention — or guideposts — to inform the multifaceted nature of criminal justice reform.  An important first step as we enter the era of decarceration is to merge the collective goals and strategies of diverse and highly invested stakeholders.

Despite the expansion of efforts to reduce jail and prison populations and reform criminal justice policy and practice, a comprehensive, inclusive, and actionable approach has been relatively absent from the conversation.  Such an approach is only possible if criminal justice stakeholders agree upon the foundational objectives that can generate lasting decarceration. In this report, we offer guideposts and actionable strategies for the era of smart decarceration in America.

This document was written by leaders of the Smart Decarceration Initiative (SDI). SDI is a joint initiative of Washington University in St. Louis and the University of Chicago and is located at the Center for Social Development at Washington University’s Brown School of Social Work. SDI’s mission is to build social capacity to reduce incarceration rates in ways that are effective, sustainable, and socially just.  Smart decarceration will only be achieved when three simultaneous goals are accomplished:

• Substantially reduce the incarcerated population in jails and prisons;

• Redress race, economic, and behavioral health disparities of those involved in the criminal justice system;

• Maximize public well-being and public safety.

SDI is grounded in four guiding concepts:

1. Changing the narrative on incarceration and the incarcerated. A smart decarceration approach must soberly question the utility and function of incarceration and actively welcome currently and formerly incarcerated individuals as leaders in decarceration efforts.

2. Making criminal justice systemwide innovations. Criminal justice transformation that leads to smart decarceration will require advances in all sectors of the criminal justice system, including law enforcement, court systems, jails and prisons, and probation and parole.

3. Implementing transdisciplinary policy and practice interventions. Smart decarceration will be complex and comprehensive and will require integrating perspectives from multiple disciplines to produce substantive policy reforms and practice innovations.

4. Employing evidence-driven strategies. A smart decarceration approach must both generate new evidence for optimal reforms and use existing evidence to guide decision-making and program development. Methods must be integrated to continuously examine and assess the effects of policy and practice interventions, thus developing further evidence from which to act.

This report, Guideposts for the Era of Smart Decarceration, is a result of our efforts to build consensus and articulate priorities that stakeholders have identified as feasible and likely to produce meaningful impact in the era of decarceration. Integral to ensuring that smart decarceration is achieved is that the ideas and needs of multiple stakeholders are represented.

This report contains a set of guideposts and action steps for stakeholders identified over a three-stage process of soliciting input from 307 advocates, practitioners, reformers, and researchers. Stakeholders were engaged in this process between September 2014 and September 2016. The purpose of Phase 1 was to show where to focus decarceration efforts. Phase 2 was used to reveal the prioritization of specific action steps that could be taken to promote decarceration in ways that are consistent with smart decarceration goals and guiding concepts. Phase 3 articulated universal policy strategies to facilitate decarcerative change....

Twelve priority areas for decarceration were generated during Phase 1. These priorities included: (1) sharing data and resource allocation; (2) incorporating assessments of risks and needs; (3) implementing evidence-driven innovations; (4) reorienting responses to severity of the crime; (5) resetting norms and narratives; (6) incorporating multiple and new perspectives; (7) responding to behavioral and physical health needs; (8) improving reentry; (9) reducing collateral consequences; (10) building diversionary systems; (11) curtailing sentencing; and (12) narrowing the funnel to incarceration....

September 11, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 10, 2017

Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?

The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission.  These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017."  The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year.  So, it can be a mistake to see trends or assert causal links based on just a little bit of data.  Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence.  That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences.  But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.

Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo.  But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.

September 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Notable data on marijuana case processing after Brooklyn DA pledge to limit prosecutions

Marijuana-cases-chart-07This WNYC piece provides some interesting data about local marijuana prosecutions in a part of NYC.  The piece's headline provides the essential highlights: "Brooklyn DA's Pledge to Reduce Marijuana Prosecutions Makes Little Difference." And here are some of the details:

In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.

Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular. “In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”

Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy. But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.

Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted. In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.

“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.

WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.

Marijuana-cases-chart-08Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this. “It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”...

Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias. “One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”

In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.

Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)

Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted. “I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."...

Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases. “This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.

But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016. “We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”

Normally I would flag a story focused on marijuana over at my Marijuana Law, Policy & Reform blog, but the case-processing and prosecutorial discretion issues raised here are surely of interest to sentencing fans.  And this post also provides an excuse to review some recent posts of note from MLP&R:

September 10, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Saturday, September 9, 2017

"America must listen to its prisoners before we make a major mistake"

The title of this post is the title of this extended Washington Post op-ed authored by Heather Ann Thompson. Here is how it starts and ends:  

Forty-six years ago, on Sept. 9, 1971, almost 1,300 men erupted in one of the 20th century’s most dramatic prison protests. Their goal? To be treated as human beings even as they served their time in one of New York state’s most notorious penal institutions, the Attica Correctional Facility.  These were men being fed on 63 cents a day, treated brutally by prison doctors and forced to labor whether they were sick or well.  They finally had reached the breaking point.

One year ago, on Sept. 9, 2016, thousands of prisoners, this time men and women from across the United States, marked the anniversary of Attica by engaging in another dramatic series of protests for the very same reasons that Attica’s incarcerated had rebelled in 1971.  Conditions were terrible.  Overcrowding was severe, food was maggot-ridden, and prisoners were still being forced to labor....

On this 46th anniversary of that day when almost 1300 men stood together to tell the nation of the horrors of their confinement at Attica, and this first anniversary of that day when thousands of men and women again stood together, at equally enormous risk, to remind us all that conditions are still brutal in our nation’s penal institutions, we must listen to what they were trying to tell us: Everyone behind bars remains a human being and, therefore, no crime committed, nor punishment rendered, justifies abuse.

And should we forget this basic truth — one that was understood, accepted and stands as the very foundation of the Universal Declaration of Human Rights adopted by the United Nations in 1948 — the men and women who endure our nation’s penal facilities will, inevitably, remind us again.

As those who struggled for better conditions and suffered so much in Upstate New York in 1971 oft said, “Attica is all of us.” Indeed it is.

September 9, 2017 in Prisons and prisoners | Permalink | Comments (1)

Friday, September 8, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate.  Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime.  But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation.  Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say.  Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.  And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide.  Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).  In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years.  The city recorded 188 homicides in each of the past two years — a two-decade high.  During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime?  Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike.  The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

September 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, September 7, 2017

Notable reporting on a plea process after wrongful convictions

A help helpful readers have flag for me the latest work from ProPublica and The Atlantic examining how two wrongfully convicted men were treated after being proven innocent by DNA. The full headlines of the main piece and a companion provide a summary of a remarkable tale:

September 7, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives"

The title of this post is the title of this article recently posted to SSRN authored by Joshua Horton. Here is its abstract:

This article investigates the issues and possible societal solutions to the Drug War, Opiate Epidemic, Mass Incarceration and other collateral consequences of current policies in three distinct parts. First, it discusses the DeFelonization of drug possession and the ramifications this would have nationally. Next, it addresses the influx of drug users into the community that are currently receiving little to no rehabilitation behind bars. This country will need to find a revenue source to fund a massive rehabilitation effort. It will come from marijuana legalization. And lastly, I investigate an up and coming approach to recovery called Recovery Community Organizations (RCO's). These entities incorporate an innovative, holistic bottom up approach, as opposed to the current top-down, massive, paternalistic governmental and criminal justice approach.

September 7, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Just how should California implement Prop 57's call for prison releases?

The question in the title of this post is prompted by this local article headlined "Prop 57: Debate rages on about which inmates should be released early." Here are excerpts:

Ten months after California voters approved a proposition allowing thousands of prison inmates to apply for early release, a debate is still raging over who ought to be freed.

Proposition 57 left it to prison officials to clearly identify which crimes deemed nonviolent would qualify and how an inmate’s criminal history would affect eligibility. The public could weigh in during a 45-day comment period this summer — and boy, did they. More than 8,500 people threw in their two cents, in writing and at a public hearing in Sacramento last week. Now, the California Department of Corrections and Rehabilitation is sorting through bulging email boxes and stacks of letters from crime victims, inmates, prosecutors and reformers.

Meanwhile, under emergency regulations, prison officials have already notified prosecutors across California of more than 1,800 inmates who have applied for early parole. No figures are available until later this month on the number of inmates whose applications have been denied, approved or have actually been released. But a snapshot of the situation in two urban counties in Northern California shows relatively few people are being granted early parole, though it is impossible to tell if the trend will continue....

Ken Scheidegger, legal director of the Sacramento-based Criminal Justice Foundation, ... opposed Proposition 57 and is concerned about the early releases. “People got the idea a few years ago that prisons were full of harmless people,” Scheidegger said. “That is a widespread popular misconception.”

But proponents note that Proposition 57 was the third time since 2012 that voters overwhelmingly opted to ease California’s tough-on-crime laws to enhance rehabilitation, stop the revolving door of crime and prevent federal courts from indiscriminately releasing inmates to reduce prison crowding. “Prop. 57 is not a ‘get out of jail free’ card,” said Benee Vejar, an organizer with the civil rights group Silicon Valley De-Bug. “It’s asking for an early parole hearing and another chance.”...

The Department of Corrections and Rehabilitation has until Sept. 20th to develop the regulations, but it can ask for a 90-day extension. The debate over the Proposition 57 regulations is being fought along similar battle lines as the fight over the initiative itself.

Advocates, including Human Rights Watch, want prison officials to consider as many people as possible for early release. Law enforcement officials want to restrict who is eligible and change how the decisions are made. Both sides are calling for more rehabilitation programs. The state recently boosted the prison system’s rehab budget by $137 million. “We cannot repair the criminal justice system on the cheap,” said Rosen, the Santa Clara County district attorney. “If we want to improve the outcomes from prison, then we will need to change the experience of being in prison.”

The ... opponents’ chief complaint is that the initiative promised voters that only nonviolent inmates would be eligible for release. But under the existing regulations, certain violent offenders are eligible once they have completed their prison term for the violent felony, but are still serving time for a nonviolent felony they were also convicted of. The Legislative Analyst’s Office also raised questions about the provision. On the other hand, Proponents want to expand the pool of inmates. Currently, about 4,000 inmates with third strikes whose last offense was nonviolent are barred from applying for early parole. Yet according to the CDCR’s own public safety risk evaluations, nonviolent third-strikers are more than three times more likely to qualify as low risk than the currently eligible prisoners.

But opponents claim crime will rise under Proposition 57, a warning they have sounded since 2011 when Gov. Jerry Brown and the Legislature began scaling back the emphasis on incarceration in response to a federal court order about prison crowding and inhumane health care. Opponents point to the fact that violent crime in 2016 rose in the state — by 4.1 percent — unlike in the country as a whole. However, proponents note California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before the reforms began....

Law enforcement officials also complain about the process. Among their concerns: Early parole applications are subject to a paper review, rather than a parole hearing; prosecutors only have 30 days to prepare a recommendation; only inmates may appeal the board’s decision; and police are cut out entirely. “My rank and file are on the front lines — they’re the ones who have to encounter these individuals once they’re on the streets,” San Jose police Chief Eddie Garcia said.

September 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, September 6, 2017

Two of the latest remarkable variations on sex offender panics

These two headlines and stories about concerns about sex offenders caught my eye this afternoon:

I find both of these article both stunning and sad, and the bill discussed in the second article would seem, if I understand it right, to raise some serious constitutional issues.

September 6, 2017 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (8)

"The History of the Original United States Sentencing Commission, 1985–1987"

the title of this post is the title of this exciting new article about a (never really old) piece of sentencing legal history that I find fascinating. This lengthy article is authored by Brent Newton and Dawinder Sidhu, and here is the abstract:

An eighteen-month period from the fall of 1985 to the spring of 1987 witnessed the most significant change to the federal criminal justice system in American history.  In those eighteen months, the United States Sentencing Commission, a new and novel independent agency in the federal judicial branch, developed sentencing guidelines for all federal judges during the same period when Congress was enacting new mandatory minimum statutory penalties that dramatically increased existing penalties for drug trafficking and firearms offenses.

This Article describes this founding era of structured federal sentencing, beginning with the Commission’s first meeting and ending with the transmittal of the initial Guidelines Manual to Congress on April 13, 1987, for its 180-day review period.  As the guidelines remain the “lodestone” of federal sentencing thirty years later, and as improving the criminal justice system continues to be an important national bipartisan aspiration, a thorough exploration of the history of the original Commission is both timely and important.

Parts II and III of this Article discuss the historical context in which the Commission was created, the key players (Commissioners and staff) during the Commission’s first eighteen months, and the initial policy decisions of the original Commission that are reflected in the Guidelines Manual and that still largely govern federal sentencing today, albeit in an “advisory” rather than a “mandatory” guidelines system. Finally, Part V offers some conclusions about the work of the original Commission.

September 6, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Encouraging new Brennan Center data on 2017 crime trends ... let the spinning begin

The Brennan Center for Justice has this notable new report titled simply "Crime in 2017: A Preliminary Analysis," and its first section starts this way: 

Based on new data collected from police departments in the 30 largest cities, this report finds that all measures of crime — overall crime, violent crime, and murder — are projected to decline in 2017. Indicators show that 2017 will have the second lowest rates of crime and violent crime since 1990.

These findings directly undercut any claim that the nation is experiencing a crime wave. In 2015 and 2016, overall crime rates remained stable, while murder and violent crime rose slightly. Now, in 2017, crime and murder are projected to decline again. This report’s main findings are explained below, and detailed in Figure 1, and in Tables 1 and 2:

• The overall crime rate in 2017 is projected to decrease slightly, by 1.8 percent. If this estimate holds, as it has in past analyses, 2017 will have the second lowest crime rate since 1990.

• The violent crime rate is projected to decrease slightly, by 0.6 percent, essentially remaining stable. This result is driven primarily by stabilization in Chicago and declines in Washington, D.C., two large cities that experienced increases in violence in recent years. The violent crime rate for this year is projected to be the second lowest since 1990 — about one percent above 2014’s violent crime rate.

• The 2017 murder rate is projected to be 2.5 percent lower than last year.  This year’s decline is driven primarily by decreases in Detroit (down 25.6 percent), Houston (down 20.5 percent), and New York (down 19.1 percent).  Chicago’s murder rate is also projected to fall, by 2.4 percent.  The 2017 murder rate is expected to be on par with that of 2009, well at the bottom of the historic post-1990 decline, yet still higher than the lowest recorded rate in 2013.  Notably, more than half the murder increase from 2014 to 2017 (55.6 percent) is attributable to two cities — Chicago and Baltimore.  This year’s decrease could indicate that the increases in 2015 and 2016 were short-term fluctuations in a longer-term downward trend.

• While crime is down this year, some cities are projected to experience localized increases. For example, Charlotte’s murder rate doubled in the first six months of 2017 relative to last year.

Before even starting to spin this new data, it bears emphasis that there could be developments in the last four months of 2017 that alter this prediction that crime will decline for the year.  But assuming these encouraging new crime numbers hold upon further developments and analysis, it will be interesting to watch different advocates making different claims about what a return to declining crimes means. I would certainly expect Prez Trump and AG Sessions to assert that their reversal of a variety of Obama era policies and practices is already having a positive impact, while advocates for progressive "smart on crime" reforms will surely claim that this data shows we can and should be able to continue to reduce prison populations and reduce crime at the same time.

Critically, whatever gets spun, these data are a cause for celebration and everyone should be rooting for the numbers to continue to trend in a positive direction in the months and years ahead.

September 6, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (7)

Tuesday, September 5, 2017

A deep look at "tough on crime" responses to the opioid epidemic

German Lopez has this lengthy important new Vox piece under the headlined "The new war on drugs: Not every state is responding to the opioid epidemic with just public health policies." I recommend the piece in full, and this excerpt highlights its themes:

There has been much discussion of criminal justice reform in the past several years. And there has been a lot of talk about treating the opioid epidemic — the deadliest overdose crisis in US history — as a public health, not criminal justice, issue, unlike past drug crises. The cliché about the crisis, said by both Democrats and Republicans, is that “we can’t arrest our way out of the problem.”

Yet the rhetoric doesn’t tell the whole story. In my own investigation, I found at least 13 states, including Kentucky, that passed laws in recent years that stiffened penalties for opioids painkillers, heroin, or fentanyl — largely in response to the epidemic.  In sharp contrast to all the talk about criminal justice reform and public health, these laws risk sending even low-level, nonviolent drug offenders — many of whom are addicted to drugs and need help for that addiction — to prison for years or decades.

The facts show that the conventional narrative about the opioid epidemic and criminal justice reform is incomplete. Most states — including many of the states I found that passed new “tough on crime” laws in response to the opioid epidemic — have passed criminal justice reform at some level in the past several years.  And the rhetoric about drugs has undeniably changed a lot in recent years across both political parties.

But as the opioid epidemic continues to kill tens of thousands of people in the US each year, many state lawmakers have gone back to the old criminal justice playbook to fight the crisis — even as the empirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic.  The new laws are just one example.  Several states have also dusted off old laws to lock up more opioid users and dealers.

And that shows that for all the talk about reform, America’s instincts for the “tough on crime” approach are still very much here.

September 5, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Lamenting a "liberal tilt in criminology"

John Paul Wright and Matt DeLisi have this provocative essay in the Summer 2017 issue of City Journal under the full headline "What Criminologists Don’t Say, and Why: Monopolized by the Left, academic research on crime gets almost everything wrong." Here are a few excerpts from what merits a full read by all criminal justice academics (and others):

Evidence of the liberal tilt in criminology is widespread.  Surveys show a 30:1 ratio of liberals to conservatives within the field, a spread comparable with that in other social sciences.  The largest group of criminologists self-identify as radical or “critical.”  These designations include many leftist intellectual orientations, from radical feminism to Marxism to postmodernism.  Themes of injustice, oppression, disparity, marginalization, economic and social justice, racial discrimination, and state-sanctioned violence dominate criminological teaching and scholarship, as represented in books with titles like Search and Destroy: African American Males in the Criminal Justice System, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse....

Walter Miller, one of the few mid-twentieth-century criminologists whose work was unapologetically conservative, suggested that ideology can turn “plausibility into ironclad certainty . . . conditional belief into ardent conviction . . . and reasoned advocate into the implacable zealot.”  When shared beliefs take hold, as they often do in the academic bubble in which most criminologists live, ideological assumptions about crime and criminals can “take the form of the sacred and inviolable dogma of the one true faith, the questioning of which is heresy, and the opposing of which is profoundly evil.”

Miller’s observations have proved prophetic.  Led by the work of Jonathan Haidt, a growing number of scholars now acknowledge that a lack of ideological diversity in the social sciences skews research in favor of leftist claims, which become the guiding principles of many fields, challenged only at the risk of harming one’s career.  Liberal assumptions go unchecked and tendentious claims of evidence become fact, while countervailing evidence doesn’t get published or faces much more rigorous scrutiny than the assertions that it challenges.

Liberal political values can shape and distort the research that criminologists do and the public positions that they take. Lee Ellis and Anthony Walsh surveyed several hundred criminologists and found that self-reported ideological perspective was strongly associated with the type of theory that the scholar most often advocated, with liberal criminologists primarily supporting theories that locate the causes of crime in social and economic deprivation.  Coauthor John Wright has recently collected data showing that political ideology predicts almost perfectly the policy positions of criminologists.  On issues ranging from gun control to capital punishment to three-strikes laws, liberal criminologists showed almost no variation in their beliefs. (Needless to say, they dislike guns, oppose punitive sentences, and vehemently object to the death penalty.)

 

Because I am a law professor and not a criminologist, I cannot speak directly to biases and their impactsin the ranks of criminologists.  But I think it notable that the authors note that other social sciences — and here I would assume law is included — also attract so many more liberals relative to conservatives.  I fear that, in any and every academic setting, this dramatic kind of political imbalance can and will always risk badly distorting the research, teaching and service of an academic department.

September 5, 2017 in Who Sentences? | Permalink | Comments (20)

Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments

I just saw that an interesting and  important constitutional procedure opinion was handed down by the Tenth Circuit last week in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here).  Here is how the panel's majority opinion gets started and some of the opinion's substantive analysis:

The district court revoked Andre Ralph Haymond’s supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

We conclude that the evidence was sufficient to support the district court’s finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court’s revocation of Haymond’s supervised release, but we vacate Haymond’s sentence and remand for resentencing....

We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished....

By requiring a mandatory term of reimprisonment, 18 U.S.C. § 3583(k) increases the minimum sentence to which a defendant may be subjected. For example, when Haymond was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years.  See 18 U.S.C. § 2252(b)(2). After the judge found, by a preponderance of the evidence, however, that Haymond had violated a particular condition of his supervised release, the mandatory provision in § 3583(k) required that Haymond be sentenced to a term of reincarceration of at least five years, up to a maximum term of life. This unquestionably increased the mandatory minimum sentence of incarceration to which he was exposed from no years to five years, yet the jury did not make the factual finding required to change his statutorily prescribed sentencing range. Instead, that finding was made by a judge by only a preponderance of the evidence. This violates the Sixth Amendment....

In Johnson v. United States, 529 U.S. 694 (2000), the Supreme Court made clear that, in order to avoid serious constitutional concerns, revocation of supervised release must be viewed as punishment for the original crime of conviction, not as punishment for the violation of the conditions of supervised release....

Regardless of the nature or severity of the defendant’s original crime of conviction, § 3583(k) imposes a mandatory minimum five-year term of imprisonment for only those specific offenses enumerated, while all other violations are subject to the maximum terms set in § 3583(e)(3). By separating these crimes from other violations, § 3583(k) imposes a heightened penalty that must be viewed, at least in part, as punishment for the subsequent conduct — conduct for which the defendant has not been tried by a jury or found guilty beyond a reasonable doubt.  This, the Court has said, is not permitted. 

To be sure, the sentencing judge can and, according to the Sentencing Guidelines, should consider the severity of the conduct by which a defendant violated the conditions of his or her supervised release.  A more serious violation might well recommend a longer term of reimprisonment.  But, if we wish to maintain the premise that revocation of supervised release is a punishment for the original crime of conviction, Congress must set the authorized term of reimprisonment based on the severity of that original crime.

Notably, Judge Kelly dissents in part because he is (reasonably) concerned that the majority's reasoning might impact any and all judicial fact-finding supporting the revocation of supervised release:

Were the court correct [in its constitutional analysis], the problem it identifies seems like it would be true of all revocation proceedings: if a defendant is sentenced to any term of supervised release, the fact that the release can then be revoked and the defendant be sent back to prison for an additional term means that “the penalty to which a defendant may be subjected” has been increased based on facts not found by a jury. Id. (emphasis added).

In other words, unless either (a) all revocation proceedings must empanel juries for fact-finding (which the Supreme Court, with good reason, has told us is not the case) or (b) the revocation proceeding is treated as a new criminal prosecution (which the Supreme Court also has told us is not the case), it is hard to understand why under current precedent Booker would apply but Apprendi and Alleyne would not. While postrevocation penalties might be considered attributable to the original conviction, the revocation proceeding is neither part of that criminal prosecution nor is it a new criminal prosecution. See Johnson, 529 U.S. at 700....

[According to the majority], the distinction, apparently, is that the terms of revocation differ based on what kind of new crime the defendant committed. But I see no reason why Congress cannot make that distinction. As the Sentencing Guidelines explain, under the “breach of trust” theory applicable to the revocation of supervised release, “the nature of the conduct leading to the revocation [can] be considered in measuring the extent of the breach of trust.” U.S. Sentencing Guidelines Manual § 7A3(b) (2016). In my view, Congress can determine that the commission of certain crimes constitutes a more serious breach of trust warranting a longer term of revocation. Doing so does not thereby make the revocation proceeding a new criminal prosecution....

Ultimately, we should not jump ahead of the Supreme Court when it has already spoken on this issue. Any tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases is for the Supreme Court itself to resolve.

Ever since the Supreme Court got serious about applying its Apprendi doctrine to various sentencing determinations in cases like Blakely and Booker, I have thought the judicial fact-finding that takes place in federal supervised release proceedings were on constitutionally shaky grounds.  Or, to parrot Judge Kelly's final statment, I have long believed that there is significant tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases.  But, in various settings, various lower federal courts have found various ways to uphold the judicial fact-finding involved in supervised release revocations — revocations that result in a significant number of federal defendants getting sent back to prison.  (This 2010 USSC report found that roughly 1/3 of all released federal prisoners get revoked and sent back to prison, and that 6% of the federal prison population are serving revocation terms.)

It will be very interest to watch if the Justice Department seeks en banc or SCOTUS review of this Tenth Circuit ruling.  I hope they will, in part because this case seems like it might just get SCOTUS to finally take a look at what its modern Fifth and Sixth Amendment doctrines should mean for supervised release revocation proceedings.

September 5, 2017 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, September 4, 2017

"The Racial Politics of Mass Incarceration"

The title of this post is the title of this notable paper authored by John Clegg and Adaner Usmani recently posted to SSRN.  Here is the abstract:

Dominant accounts of America's punitive turn assume that black elected officials and their constituents resisted higher levels of imprisonment and policing.  We gather new data and find little support for this view.  Panel regressions and an analysis of federally-mandated redistricting suggest that black elected officials had a punitive impact on imprisonment and policing.  We corroborate this with public opinion and legislative data. Pooling 300,000 respondents to polls between 1955 and 2014, we find that blacks became substantially more punitive over this period, and were consistently more fearful of crime than whites.

The punitive impact of black elected officials at the state and federal level was concentrated at the height of public punitiveness.  In short, the racial politics of punishment are more complex than the conventional view allows.  We find evidence that black elected officials and the black public were more likely than whites to support non-punitive policies, but conclude that they were constrained by the context in which they sought remedies from crime.

September 4, 2017 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Sunday, September 3, 2017

A long-weekend review of some marijuana reform news and notes

A long weekend seems to provide a good excuse to review some recent posts of note from Marijuana Law, Policy & Reform. So here goes:

September 3, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (3)

Ohio Gov delays multiple executions while denying clemency for double murderer slated to die later this month

As noted and lamented in this recent Fair Punishment Project report, "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age," as of the end of August 2017, Ohio had scheduled 26 executions to take place between now and 2020.  But as of the start of September 2017, thanks to the clemency/reprieve powers of Ohio Gov John Kasich and as detailed here, Ohio has only 18 executions scheduled to take place between now and 2020 with eight others being pushed back to 2021 and 2022.

The delaying of numerous execution was explained in this press release, which also notes that Gov Kasich has (unsurprisingly) denied clemency for a double murderer still scheduled to be executed on September 13:

Gov. John R. Kasich has denied a request for executive clemency from Gary Otte who was convicted in Cuyahoga County for the 1992 robbery and murder of 61 year-old Robert Wasikowski and 45 year-old Sharon Kostura at their respective apartments in Parma, OH.  The Governor’s decision follows the advice of the Ohio Parole Board, who on February 10, 2017, recommended against clemency for Otte by a vote of 11-0.

Additionally, in consultation with the Ohio Department of Rehabilitation and Correction, the governor updated Ohio’s current execution schedule.  After the U.S. Supreme Court rejected claims by Ohio inmates that the state’s protocol was unconstitutional, allowing the execution of Ronald Phillips to proceed in July, the state reviewed the existing schedule to ensure Ohio would meet the goal of conducting court-ordered executions in a humane and professional manner.

Looking over the revised execution schedule, I surmise that the folks at the Ohio Department of Rehabilitation and Correction were not too keen on having to gear up for an execution scheduled nearly every month for the next two years and so they urged Gov Kasich to set a revised schedule that now has an execution taking place only, roughly, every other month through the next five years.

Notably, there are, as detailed here, another 123 persons on Ohio's death row in addition the the 26 with current execution date. That means that even if Ohio were to keep up the pace of six execution per year going forward after 2022, it would take until 2042 to carry out the sentences only of those currently condemned to die. That reality, in turn, lead me to start speculating about who might be governor of Ohio in a quarter century and whether she might be a proponent or opponent of capital punishment.

September 3, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Saturday, September 2, 2017

Anyone want to talk about Judge Richard Posner's sentencing legacy on his retirement day?

As reported here by the Chicago Tribune, one of the most prominent and best-known federal circuit judges suddenly decided to retire from the Seventh Circuit: "Judge Richard A. Posner, one of the nation's leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago." Here is more: 

Posner, 78, is stepping down effective Saturday, according to a news release Friday afternoon from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is "proud to have promoted a pragmatic approach to judging." He said he spent his career applying his view that "judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case."

Posner's biting and often brilliant written opinions as well as his unrelenting questioning from the bench have made him an icon of the court for years. Known as a conservative at the time of his appointment, Posner's views skewed more libertarian through the years, and he often came down in favor of more liberal issues such as gay marriage and abortion rights.

I consider sentencing another arena in which (now former) Judge Posner came to be more liberal over time.  And, in the sentencing universe, I will always think first of Judge Posner sparring with Judge Easterbrook over the impact of the Supreme Court's Blakely decision for the federal sentencing system in US v. Booker when that case was before the Seventh Circuit (that opinion is available at this link).

I suspect some other sentencing fans might have other thoughts about (now former) Judge Posner, especially practitioners within the Seventh Circuit. I would love to hear those thoughts in the comments.

September 2, 2017 in Who Sentences? | Permalink | Comments (13)

Friday, September 1, 2017

Two interesting and critical takes on AG Jeff Sessions' repeated statements about rising crime

These two recent commentaries take apart and generally take down statements by Attorney General Jeff Sessions about rising crime rates in the United States:

September 1, 2017 in National and State Crime Data | Permalink | Comments (9)

Federal district judge finds Colorado's Sex Offense Registration Act, as applied, amounts to unconstitutional punishment

A couple of helpful readers made sure I did not miss a notable extended opinion concerning application of Colorado's sex offender registration laws. The opinion in Millard v. Rankin, No. 1:13-cv-02406 (D. Colo. Aug. 31, 2017), which can be downloaded below, starts and ends this way:

Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site....

Based on the foregoing, it is ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega, violates procedural due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it is

FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

Download 20170831 Millard Ruling re Sex Offender Registry

September 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11)

Thursday, August 31, 2017

Florida Supreme Court says Gov was within authority to remove prosecutor from capital cases

The Florida Supreme Court issues a ruling today in Ayala v. Scott, No. SC 17-653 (Fla Aug 31, 2017) (available here). Here is the start of the opinion and the some of its analysis section:

Aramis Donell Ayala, State Attorney for Florida’s Ninth Judicial Circuit, petitions this Court for a writ of quo warranto, challenging Governor Rick Scott’s authority under section 27.14(1), Florida Statutes (2016), to reassign the prosecution of death-penalty eligible cases in the Ninth Circuit to Brad King, State Attorney for Florida’s Fifth Judicial Circuit. We have jurisdiction.  See article V, § 3(b)(8), Fla. Const.  For the reasons below, we deny Ayala’s petition....

Ayala argues that the Governor exceeded his authority under section 27.14 by reassigning death-penalty eligible cases in the Ninth Circuit to King over her objection because article V, section 17, of the Florida Constitution makes Ayala “the prosecuting officer of all trial courts in [the Ninth] [C]ircuit.”  While quo warranto is the proper vehicle to challenge the Governor’s authority to reassign these cases to King, see Fla. House of Representatives v. Crist, 999 So. 2d 601, 607 (Fla. 2008), Ayala is not entitled to relief because the Governor did not exceed his authority on the facts of this case....

[T]he executive orders reassigning the death-penalty eligible cases in the Ninth Circuit to King fall well “within the bounds” of the Governor’s “broad authority.”  Finch, 254 So. 2d at 204-05.  Far from being unreasoned or arbitrary, as required by section 27.14(1), the reassignments are predicated upon “good and sufficient reason,” namely Ayala’s blanket refusal to pursue the death penalty in any case despite Florida law establishing the death penalty as an appropriate sentence under certain circumstances. See generally § 921.141, Fla. Stat. (2017).

Notwithstanding the Governor’s compliance with all of the requirements of section 27.14(1), however, Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion.  We decline the invitation because by effectively banning the death penalty in the Ninth Circuit — as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty — Ayala has exercised no discretion at all.  As New York’s high court cogently explained, “adopting a ‘blanket policy’ ” against the imposition of the death penalty is “in effect refusing to exercise discretion” and tantamount to a “functional[] veto” of state law authorizing prosecutors to pursue the death penalty in appropriate cases. Johnson v. Pataki, 691 N.E.2d 1002, 1007 (N.Y. 1997).

Two Justices dissented, and the dissenting opinion starts this way:

This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.  The issue before this Court is whether a duly elected State Attorney’s choice to forgo seeking one potential penalty in a class of criminal cases, in favor of seeking another penalty authorized by statute, constitutes “good and sufficient reason” for the Governor to exercise his removal power under section 27.14(1), Florida Statutes (2017).  I dissent because the State Attorney’s decision to prosecute first-degree murder cases but not seek the death penalty at this time does not provide a basis for the Governor to remove State Attorney Aramis Ayala.

August 31, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Thoughtful account of what to think about risk assessment tools

This new commentary at The Crime Report authored by Megan Stevenson, headlined simply "Is Crime Predictable?," provides an effectively measured discussion of the use of risk assessment tools in criminal justice decision-making. Here is how it starts and ends:

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.

Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety. Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.

Which side is right? It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented. Risk assessments are tools — no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.

They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense....

We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.

Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.

UPDATE: I am pleased to see that this commentary has now been given a more fitting headline over at The Crime Report: "Risk Assessment: The Devil’s in the Details"

August 31, 2017 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (4)

Interesting accounting of effort by Michigan juve killer to get Miller resentencing relief even though he is parole eligible

I was intrigued to see this local Michigan story, headlined "Sides plea on re-sentencing of teen killer," discussing a courtroom debate over whether a juvenile killer long ago sentenced to life with parole should still be able to secure resentencing thanks to the Supreme Court's recent Eighth Amendment jurisprudence. I find the story intriguing not only because of an effort to expand the reach of Miller, but also because the murder victim's family is apparently supportive of the offender's effort to secure release nearly four decades after the crime:

Members of both families packed a courtroom Wednesday as lawyers argued for and against a re-sentencing for a man who killed a high school classmate in 1980. Relatives of Michael Johnson, serving a life sentence for murdering Sue Ellen Machemer, and relatives of Sue Ellen sat on the same side of the courtroom during his bid for re-sentencing. For years, the victim’s family, as well as Johnson’s, have supported his release from prison.

Johnson, 54, was 17 when he killed Sue Ellen, a 15-year-old classmate at Lakeshore High School, where they were both juniors. Johnson, who is in the Ionia Correctional Facility, did not appear at Wednesday’s hearing. His lawyer, Mary Chartier of Lansing, argued for a re-sentencing for Johnson, saying his life sentence, though parolable, is unconstitutional and invalid based on new information about the brain development and characteristics of juveniles. Also, because the Michigan Parole Board has not taken an interest in Johnson’s case, he has no meaningful opportunity for release, Chartier told Berrien County Trial Court Judge John Donahue.

Berrien Assistant Prosecutor Aaron Mead argued that the Parole Board’s action, or lack of, has nothing to do with the validity of the sentence, and that Johnson’s case would be better fought by suing the Parole Board. “Frankly, allowing somebody to back door the Parole Board by saying a sentence is invalid is a very bad precedent,” Mead told the judge at a hearing Wednesday on Johnson’s motion for a re-sentencing.

Donahue took the lawyers’ arguments under advisement and said he will rule in four to eight weeks whether Johnson should be re-sentenced.

Chartier said Johnson’s sentence is unconstitutional because it began when he was a juvenile. The U.S. Supreme Court has ruled that mandatory life imprisonment without the possibility of parole violates the Eighth Amendment when applied to juveniles. Because the ruling is retroactive, courts are working through a number of first-degree murder cases involving juvenile offenders, and in some cases re-sentencing them.

Mead argues that Johnson’s case does not apply because he pleaded guilty to second-degree murder, and was sentenced by the late Judge Julian Hughes to life in prison with the possibility of parole. After serving 10 years, Johnson came into the parole board’s jurisdiction, but the board has never expressed interest in paroling him.

In 2010, Johnson lost on a motion to set aside his life prison sentence. Donahue, who hears Johnson’s motions because he is Hughes’ predecessor on the bench, rejected Johnson’s earlier argument that a change in Michigan Parole Board policies invalidated his sentence. Sue Ellen’s parents, Mel and Ellen Machemer, sat next to Johnson’s family in court, as they did during the hearing in 2010. The Machemers say they have gotten to know Johnson as an adult in prison, have forgiven him, and think it may be time for his release. His own family also supports him and says he has a place to live and a job waiting for him.

Chartier told the judge Wednesday that when Johnson’s file is looked at every five years, he gets a notice of “no interest” from the Parole Board and therefore has repeatedly been denied any meaningful opportunity for release. She said his sentence has been more harsh than that of juveniles convicted of first-degree murder because their cases now have to be reconsidered. “The Supreme Court says that juveniles must be offered some meaningful opportunity for release, and mere hope is not enough,” Chartier told the court. “The Supreme Court says juveniles are different, that wasn’t (considered) in Michael Johnson’s case. These rulings are retroactive, and he’s being denied the (high court’s) mandate for a meaningful opportunity for release.”

Chartier further argued that because Johnson’s sentence was life rather than a term of years, he is being treated in the same manner as someone sentenced to life without parole. She said someone sentenced to a term of years, when up for parole review, is told why if parole is not granted. “In his case, they don’t have to state a reason for not hearing it. He is a juvenile serving a life sentence. He’s gotten no guidance regarding what he needs to do to be released,” Chartier told Donahue....

Mead argued that a sentence can only be reviewed if it is determined to be invalid. Johnson was sentenced to parolable life for second-degree murder, a sentence that is valid, Mead told the court. He said the Supreme Court ruling regarding juveniles applied “only to non-parolable life, nothing else.” He said the Berrien County Trial Court cannot find the sentence invalid based on the Parole Board process. “Where do you draw the line regarding meaningful opportunity (for release)? You don’t draw it in this court,” Mead told Donahue. “Nobody has had the Parole Board answer for itself. The defendant is asking you to be a Super Parole Board. If prisoners say the Parole Board is the problem, then by all means hold them accountable.”

August 31, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, August 30, 2017

Recent items of note from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So are some recent posts of note from CCRC:

August 30, 2017 in Clemency and Pardons, Collateral consequences | Permalink | Comments (1)

More context for contemplating Prez Trump's pardon of Joe Arpaio

Yesterday I noticed two interesting pieces providing some context for Prez Trump's decision last week to make his first use of the clemency power a pardon for Joe Arpaio (basics here).  Here are their headlines, links and leads:

From CNN here, "This chart shows why Trump's pardon of Arpaio was so unusual":

It was an atypical pardon from an atypical president.  When President Donald Trump granted his very first pardon to Arizonan former sheriff Joe Arpaio, he bucked process and precedent by circumventing the Department of Justice's unit dedicated to making recommendations on such requests.  But he also bucked decades of precedent for how recent pardons have nearly always been granted: a majority have come in the last year of a president's term, they usually come in groups of a dozen or more and they cancel convictions averaging more than two decades old.

Trump's pardon of Arpaio marks one of the earliest pardons in a president's term and one of the only pardons granted alone, according to a CNN analysis of Department of Justice data ranging back nearly three decades. And we turned that data into a chart that shows how, historically, this pardon sticks out in all three major areas: numbers of years into a president's term, number of pardons issued at once and time since the conviction or sentencing.

From FiveThirtyEight here, "The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble":

Was President Trump’s pardon of former Sheriff Joe Arpaio, issued on a Friday night as a deadly hurricane barreled toward the Gulf Coast, unprecedented?  Or just unpopular?

Several political allies and foes immediately condemned the move as inappropriate and an insult to the justice system. But most of the criticized characteristics of Arpaio’s pardon have at least some parallels to previous ones. The number of controversial characteristics of the Arpaio pardon, however, is unusual and raises questions about the political fallout that Trump will face. The Arpaio pardon, in other words, does have historical precedents (as Trump said on Monday) — just not good ones.

Recent prior related posts:

August 30, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

New report spotlights concerns with background of 26 Ohio condemned scheduled for execution in coming months and years

In this post earlier this year, I reported on a significant report produced by the Fair Punishment Project (FPP) examining the background and case history of eight death row defendants in Arkansas who had approaching execution dates.  That March 2017 Arkansas report from FPP was titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and I am inclined to assert that the FPP report played a role in a few of these Arkansas defendants getting their executions stayed.

Now FPP has turned its eye to the Buckeye State now that Ohio has gotten its machinery of death operating again, and FPP's latest report here is titled "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age." Here is how this report gets started:

On July 26, 2017, Ohio ended its three-year execution moratorium and put Ronald Phillips to death.  Phillips, 19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse — information his trial lawyers never learned or presented to a jury.

Ohio intends to execute three more people in 2017 and then 23 more between 2018 and 2020.  We examined the cases of these 26 men, relying on available legal pleadings, court opinions, and where accessible, trial testimony.  We found that these men are among the most impaired and traumatized among us — a pattern replicated across America’s death rows.  At least 17 out of the 26 men experienced serious childhood trauma — horrifying instances of extensive physical and sexual abuse.  At least six men appear to suffer from a mental illness, and at least 11 have evidence of intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury.  Three were under the age of 21 at the time they committed their offenses, a period during which an individual’s brain, especially the section related to impulse control and decision-making, is still underdeveloped.  Many of these men fall within several of these categories, which compounds the impairments.

We use the term “at least” because three of these men waived the presentation of mitigation at their trials.  And several had lawyers who conducted little to no investigation at both the trial and post-conviction phase or failed to seek the assistance of psychologists and other experts, despite the presence of familial mental illness, which is often hereditary. Therefore, in those cases, we know very little about existing impairments, even though execution dates are looming.

The Constitution mandates that the state restrict the use of the death penalty to only those “whose extreme culpability makes them ‘the most deserving of execution,’” regardless of the severity of their crimes. The individuals identified here have been convicted of horrible crimes, and they must be held to account.  But the evidence suggests that Ohio has not met its constitutional obligation.  It is instead planning to execute nearly two dozen individuals with substantial impairments, rather than reserving the punishment for those with the greatest culpability.

Below, we describe some of the stories we uncovered while researching these 26 Ohio cases.  We have grouped them by category of impairment which includes serious trauma, mental illness and intellectual disability, and youth.  These distinctions, however, are artificial — many of these men have heartbreaking stories falling within multiple categories. For each example of a debilitating impairment, we could have included many other equally terrifying stories about those facing a sentence of death.

August 30, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (14)