Monday, May 28, 2018

"Cell Phones and 'Excessive Contact': The Contradictory Imperatives Facing California’s Parole-Eligible Lifers"

The title of this post is the title of this new article authored by Nazgol Ghandnoosh now available on-line. Here is its abstract:

A growing literature emphasizes that U.S. correctional systems have remained committed to rehabilitative goals despite their turn toward incapacitation and punishment.  Although past research has documented this commitment in prisons and parole supervision agencies, less is understood about how it is manifested in the discretionary parole release process.

This article explores whether and how parole boards encourage people serving parole-eligible life sentences (“lifers”) to maintain ties to friends and family outside of prison, and the results of such encouragement.  Interviews, ethnographic fieldwork, and parole-hearing transcripts reveal that California’s parole board encourages such rehabilitative ties through comments at parole hearings and through its parole-eligibility criteria.  But to sustain these relationships, some lifers engage in misconduct to bypass restrictive prison policies by using contraband cell phones or engaging in physical contact with visitors that is deemed “excessive.”  When detected, these disciplinary infractions become a stated cause of parole denials.

May 28, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, May 27, 2018

An (encouraging?) update on the state of federal criminal justice reform in US Senate

The New York Times has this new article, headlined "Why Some Senators Who Want a Criminal Justice Overhaul Oppose a Prisons Bill," reporting on the latest state of debate over federal statutory criminal justice reforms. The report is a bit encouraging, though also a bit worrisome.  Here are highlights:

In a private huddle on Wednesday on the Senate floor, a group of senators corralled Senator Mitch McConnell, Republican of Kentucky and the majority leader, and asked for time for a last-ditch negotiation to try to find an acceptable compromise.  Quite rightly, backers of changes in mandatory minimum laws fear that this may be the only chance for years to push a major criminal justice measure through Congress and that sentencing revisions — a more politically difficult lift — will languish if legislation aimed at reducing prison recidivism becomes law on its own.

“You don’t get many opportunities around here to do anything meaningful or substantive,” said Senator Richard J. Durbin, Democrat of Illinois and a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”

Mr. Durbin has a powerful ally in Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee. Mr. Grassley came around slowly to sentencing changes, but once he got on board, he has been committed. He warned again last week that no criminal justice measure can pass the Senate without new flexibility in mandatory minimum sentences. “It’s the right thing to do,” Mr. Grassley said in a speech.

Mr. McConnell could try to go around Mr. Grassley and advance the House measure, which passed 360 to 59.  It allocates $50 million a year over five years for job training, education and mental health and drug treatment, and provides incentives for prisoners to take part in the programs.  But Mr. Grassley has been Mr. McConnell’s dedicated partner in pushing judicial nominations through the Senate — and in blocking President Barack Obama’s Supreme Court nomination of Merrick B. Garland in 2016.  His opposition would be an embarrassing obstacle.  Not to mention that Mr. McConnell is not that keen on criminal justice legislation in general, and he would probably be reluctant to provoke a midterm election season battle over a measure for which he has little personal enthusiasm. He refused to put the broad prison and sentencing bill to a vote in the last Congress despite bipartisan support because of objections from conservatives, including Senator Jeff Sessions, who is now the attorney general.

In his meeting on the floor with senators including Mr. Durbin, Mr. Grassley and John Cornyn of Texas, the No. 2 Senate Republican and a chief sponsor of the prison bill, Mr. McConnell was noncommittal but left open the prospect of moving ahead with a bill if an agreement could be reached.  “I said, ‘Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it,’ ” Mr. McConnell said in an interview with The New York Times. But he said he was not interested in wasting the Senate’s time.

“What I’m not willing to do, just to refresh your memory from a couple of months ago, is have a freewheeling debate like we did on immigration for a whole week,” Mr. McConnell said. “We squandered a week and nothing happened. So I’m in the business of trying to make a law, not make a point.”

Mr. Durbin and other Senate backers of the sentencing changes believe they can make some relatively modest additions to the prison legislation to achieve some but not all of their goals.  They are focused on narrowing the definition of crimes that can prompt long mandatory minimum sentences for nonviolent drug crimes and on cutting the length of some of the required sentences.  They say that such changes would have a much more consequential effect on easing the United States’ mass incarceration than solely focusing on recidivism. “We might not get everything we want, but there is some sentencing reform we can achieve with this bill,” said Senator Mike Lee, Republican of Utah.

But others believe that throwing sentencing provisions into the mix will kill the prison bill, particularly with the midterm elections looming.  The sentencing changes have previously proved an impossible sell to conservative Republicans who believe the reductions in mandatory minimums make them look soft on crime.  It was that previous divide that kept Mr. McConnell from moving ahead with the more comprehensive version.

Backers of the prison bill, which is titled the First Step Act, say that Congress should take what it can get immediately and continue to press ahead on the more challenging sentencing changes. “The First Step Act is not the end,” said Representative Hakeem Jeffries, Democrat of New York and an author of the measure. “It’s not even the beginning of the end. It’s simply the end of the beginning on a journey undertaken to eradicate our mass incarceration epidemic in America.”

Those pursuing a more comprehensive approach say that the consideration of the prison bill alone could doom their efforts because it will allow lawmakers and the White House to claim they acted on criminal justice without getting at the real issue.  “It is one thing to say we are going to open the door an inch wider for those wanting to leave prison while ignoring the fact that they are flooding in through the front door,” Mr. Durbin said.

Senators now have what appears to be a slight opening to fashion a compromise they can try to sell to skeptical and resistant colleagues.  If they fail, proponents of the prison legislation will no doubt begin clamoring for action on their measure, setting up a showdown with the originators of the criminal justice system proposal over what constitutes true reform.

Some of many prior related posts:

UPDATE:  This new commentary authored by Derek Cohen, headlined "Prison reform is worth fighting for in the Senate," makes the case for the FIRST STEP Act. Eugene Robinson has authored this distinct commentary making a somewhat different pitch for the bill under the headline "Prison reform bill isn't perfect, but it's a First Step."

May 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Interesting accounting of clemency's continued decline in New Mexico

Cover-2-Gov-Pardon-Box1-771x796This past week I came across this terrific lengthy local article looking in-depth at clemency realities in one state. The piece's headlined reveals its essential finding: "Analysis: Pardons have plummeted in New Mexico under Gov. Martinez." Here are excerpts:

SFR and New Mexico In Depth have assembled what is perhaps the most complete picture ever of how recent New Mexico governors have used their constitutional power of executive clemency.  That includes pardons, for people who have served their time, and commutations, in which sentences are reduced for those still incarcerated.

A court victory in a public records lawsuit filed by SFR enabled this close examination, which found, among other things, that Ellis resides in an overwhelming majority: She has asked Martinez for a pardon—and didn’t receive one.

An analysis of hundreds of pages of documents and multiple spreadsheets by the news organizations shows that Martinez has granted just three pardons — an act that clears what are, in most cases, decades-old crimes from people’s criminal records — since taking office.  More significantly, the analysis reveals a drastic drop in the number of people even requesting clemency under Martinez, compared to the previous two administrations.

Former two-term governors Gary Johnson and Bill Richardson fielded more than 1,000 clemency applications each; Martinez has received roughly 250 applications for mercy in her seven and half years as governor, according to records turned over by the state.  Johnson, then a Republican and now a Libertarian, granted nearly 9 percent of pardon applications between 1995 and 2003, the analysis found.  Richardson, a Democrat who served from 2003 through 2010, had a 7 percent pardon grant rate.

Martinez: 1 percent.

Johnson commuted two women’s sentences, and Richardson gave one woman a commutation.  Martinez has not granted any commutation requests, the records show.

The meager grant rate for Martinez, a former district attorney in Las Cruces who is approaching the end of her second and final term, fits with her govern-as-prosecutor style on criminal justice issues — including her ongoing push to reinstate the death penalty, calls for increased sentences for a host of crimes and even coming around to support Trump’s border wall idea.

The precipitous decline in applications surprised a pair of longtime New Mexico criminal defense lawyers who have decades of experience in post-conviction work.  Both concede, however, that they’ve told prospective clients not to bother with clemency applications until there’s a new governor, given Martinez’ rhetoric since she took office in 2011.  One of the lawyers, Mark Donatelli of Santa Fe, calls Martinez’ clemency record an “abuse of power in the sense of not using the powers that are granted to her by the Legislature and our constitution.”

Mark Osler, a professor at the University of St. Thomas in Minnesota whose scholarship, writing and teaching have focused on clemency nationwide, says he’s not aware of any other states that have seen applications fall off the cliff as they have here. He called Martinez’ stinginess with clemency a “dereliction of duty.”

“Pardons, which effectively are a restoration of rights, are meant to be part of the system; they’re included in state constitutions, and we don’t throw constitutions together casually,” Osler says. “There’s something deeply troubling about kicking part of the system out from under people.”

Donatelli and Margaret Strickland, president of the New Mexico Criminal Defense Lawyers Association, say pardons are especially important in New Mexico, which does not allow expungement — the wiping clean of some criminal records after a certain period of time — even for misdemeanors. In the internet age, when arrest records are a mouse-click away, a pardon could go miles toward landing someone a job.

Martinez, however, has granted pardons to three people who are at or near retirement age.  Their crimes: welfare fraud; breaking and entering; and larceny. The governor has denied at least 65 applications for clemency outright; she deemed at least another 71 “ineligible” for various reasons and, in 32 cases, her office did not provide a disposition or an explanation for where the applications stand.

Some of the pardon files Martinez’ office provided are incomplete, leaving a question mark hovering over the disposition of some 85 cases, some of which the governor appears not to have acted on.  The data leaves other questions, too.  It appears the state does not track the race, ethnicity, age or even gender of those who have applied for pardons. Nor is there an indication of how many applicants had the assistance of a lawyer.

What is clear, however, is that people have sought clemency for crimes ranging from first-degree murder — automatically ineligible for pardons here, by law — to rape, armed robbery, writing worthless checks and drug possession charges that are no longer felonies in New Mexico.  And although Martinez has turned away a higher percentage of applicants than her predecessors, the vast majority of those who have filled out a pardon application during the past 24 years have come away empty-handed.

Martinez has steadfastly refused to discuss her pardon record, going so far as to spend hundreds of thousands of dollars of state money on a private lawyer to keep secret the records that underpin this story.  She remained silent through multiple requests for comment on the findings by SFR and NMID....

During her first four-year term, Martinez put more requirements in place for applying for pardons, a process that already forced applicants to have a high school diploma and to wait various lengths of time after their convictions before applying. She has barred pardons for a host of crimes, including misdemeanors, multiple DWIs and sexual offenses.

New Mexico is one of 29 states where the power of executive clemency is vested in the governor alone, according to a scholarly paper published by the American Bar Association in 2009. New Mexico state law allows for its Parole Board to advise the state’s chief executive on pardons.  And the governor does frequently seek Parole Board input; the SFR and NMID analysis shows the Parole Board weighed in on 134 requests under Johnson, 259 requests under Richardson and at least 68 requests under Martinez.

In 13 cases, Martinez went against the Parole Board’s recommendation. Such was the case with Bruce Gillis, who in 1974 was convicted of a fourth-degree felony for distributing marijuana.  Gillis told Martinez in a letter that he was 20 years old, “immature and irresponsible,” and pleaded guilty to the charge at the advice of a lawyer, but later turned his life around.  The Parole Board recommended a pardon. Martinez denied it.

Generally, in states where pardon power isn’t invested in a single person, rates of successful pardon applications are higher, says Osler, the Minnesota law professor.  For example, Georgia and South Carolina, where parole boards have ultimate authority over pardons, issue pardons at higher rates than Vermont, Minnesota and New Mexico, three states where the governor has complete control.  “You tend to see fewer granted when the executive has absolute power, because it becomes a political concern,” he says.

May 27, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Examining thoughtfully modern trend to prosecute overdose deaths as homicides

The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?".  The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers.  Friends, family and fellow users are going to prison."  To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full.  Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing.  Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases.  Here are excerpts:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”

Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”

In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....

Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....

The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.

The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....

Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....

In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...

Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...

Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.

But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”

Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”

Some of many prior related posts:

May 27, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Saturday, May 26, 2018

"Time to rethink probation and parole"

The title of this post is the headline of this recent commentary authored by Larry Krasner and Miriam Krinsky. (Kranser, as many readers surely know, is the District Attorney of Philadelphia and Krinsky is a former federal prosecutor and Executive Director of Fair and Just Prosecution.) Here are excerpts:

As longtime leaders in criminal justice, we have seen a deeply unsettling trend in the way probation and parole — sometimes called “community corrections” — have become overused and too often serve as a gateway to reincarceration based on the smallest of missteps.  That’s why we recently joined with 45 fellow prosecutors nationwide who believe that community corrections needs to be downsized and made rehabilitative, not only because that will make us safer, but because it will fortify trust in our justice system for millions of Americans.

When community corrections was founded in the 1800s, it was viewed as a highly individualized way to curb the purely punitive sentence of imprisonment with an alternative to incarceration (probation) or a release valve for those who did well during incarceration (parole).  But since 1980, it has grown far beyond what its founders ever could have imagined. The number of people on probation and parole has increased four-fold, peaking at 5 million individuals — or one out of every 53 adults — before declining slightly of late. That is twice as many people as are incarcerated in America, and more people than live in half of all U.S. states.

Often thought of as a grant of mercy or slap on the wrist, parole and probation are a deprivation of liberty and can serve as an unnecessary trip wire back into incarceration. Four out of 10 people entering our prisons and jails were on parole or probation at the time of their reincarceration.  Often that stay behind bars is not for a new arrest, but simply for violating a technical condition of release like missing appointments or drug use....

Pennsylvania has the highest incarceration rate in the Northeast, and the third-highest community corrections rate in the country. The number and rate of people supervised by parole in Pennsylvania is the highest in the nation — three times the national average.  An astonishing one out of 22 Philadelphians is being supervised by probation or parole....

Several states have tried to reduce both the footprint and harmful outcomes of these practices.  When Arizona gave people “earned discharge” time off their probation terms, the state not only reduced probation violations by 29 percent, but achieved a 21 percent decline in arrests of people on probation, realizing $392 million in averted costs.  When Louisiana capped the amount of time someone could receive for technical violations at between 15 and 45 days, there was a 22 percent decline in returns to incarceration for new arrests, saving over 2,000 beds and $17 million.

Pennsylvania State Sen. Anthony Williams and New York Assembly Member Walter Mosely have filed legislation in their respective states to address this issue.  These proposed reforms would shorten probation and parole terms, grant people 30 days of earned discharge time for every 30 days of success under supervision, and cap the amount of time someone could receive for a technical violation.

These are the kinds of sensible policy changes needed to restore faith in our justice system, reduce the overly expansive scope of community corrections, focus assistance on those people most in need, reward people for good performance, and overall, increase public safety and rehabilitation.  We hope that prosecutors around the nation will rally around the need for reform and use their influence to help chart a more positive pathway for all members of our community.

May 26, 2018 in Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Friday, May 25, 2018

A few juicy SCOTUS relists (to temper the guideline-vagueness denials) for sentencing fans

Over at SCOTUSblog, John Elwood continues his yeoman's work via his "Relist Watch" postings which highlight cases that the Supreme Court considered but did not resolve during  recent certiorari review conferences.  In this week's installment of "Relist Watch," we get started with a review of the news, blogged here, that cert was (somewhat surprisingly) denied on oft-relisted vagueness challenges to pre-Booker mandatory application of career-offender guideline.  But thereafter we get the details on some interesting new additions to the relist watch that should intrigue criminal justice fans (with links from the original):

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States.  So long Allen v. United States17-5684; farewell Gates v. United States17-6262; auf Wiedersehen, James v. United States17-6769; adieu, Robinson v. United States17-6877; smell ya later Lester v. United States17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.  If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released....

Clark v. Louisiana16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola.  The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court.  Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.”  The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death.  The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going.  The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed.  Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases — ordinarily meaning the court moved them from one conference to another before considering them at conference.  Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, have been rescheduled nine times each — and both have been rescheduled even since they were relisted.  Lee v. Ohio17-7213, and Belton v. Ohio17-7233, have both been rescheduled four times.  So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence.  Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state– at least beyond the upbeat kind that just spell its name.  Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist.  In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent — just not the ones you think.  The petitioners in Lee v. Ohio17-7213, and Belton v. Ohio17-7233, both were convicted of killing people in botched robberies.  Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

May 25, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Explaining the sudden resignation last week of federal Bureau of Prisons chief

As reported in this post last week, Mark Inch, the director of the federal Bureau of Prisons abruptly resigned on the very day that the White House was having a big event promoting prison reform.  Now the New York Times has this big article explaining why under the headline "Turf War Between Kushner and Sessions Drove Federal Prisons Director to Quit." Here are excerpts: 

When Jared Kushner hosted a high-profile summit meeting on federal prison reform at the White House last Friday, some in attendance noticed that the man who was ostensibly in charge of the federal prison system, Mark S. Inch, a retired Army major general, was nowhere in sight.

Only Mr. Kushner and a few others knew that Mr. Inch, a genial former military police commander appointed to oversee the Federal Bureau of Prisons and its more than 180,000 inmates just nine months ago, had two days earlier submitted his resignation as the bureau’s director to Deputy Attorney General Rod J. Rosenstein. By the time President Trump entered the East Room, Mr. Inch had already been ordered to vacate his office and had begun packing up books and memorabilia from his 35-year military career.

Mr. Inch told Mr. Rosenstein he was tired of the administration flouting “departmental norms.” And he complained that Attorney General Jeff Sessions had largely excluded him from major staffing, budget and policy decisions, according to three people with knowledge of the situation. Mr. Inch also felt marginalized by Mr. Kushner, the president’s son-in-law and senior adviser, in drafting prison reform legislation, the officials said.

He found himself caught in an ideological turf war between Mr. Kushner and Mr. Sessions. Mr. Kushner has championed reforms to the corrections system and more lenient federal sentencing, and Mr. Sessions, a law-and-order conservative and former Alabama attorney general, has opposed significant parts of the bipartisan prison reform bill that Mr. Kushner backs, according to officials.

Mr. Kushner, with the president’s support, has been pushing prison reform legislation meant to reduce recidivism by incentivizing inmates — with the possibility of early release to halfway houses or home confinement — to take part in job training and other rehabilitation programs. Early in the administration, Mr. Kushner and Mr. Sessions came to an agreement, according to a former administration official involved in their talks. Mr. Kushner would press ahead with prison reforms but avoid a politically divisive issue he cared even more strongly about, sentencing reform, which the attorney general and Senator Mitch McConnell, the majority leader, both adamantly oppose.

But Mr. Sessions, not Mr. Kushner, controls the prison bureau. And he has quietly worked to ensure that any reforms that might be seen as excessively lenient toward inmates are put into place only after time-consuming study, according to officials....

But some see Mr. Inch’s exit as an opening for Mr. Trump to take a more sweeping approach that would include sentencing reform — one of the few issues that offer him a chance for the kind of big, bipartisan deal he promised during the 2016 campaign. “The rap against General Inch is that he wasn’t a real reformer. In that sense, his departure is an opportunity,” said Kevin Ring, president of Families Against Mandatory Minimums, a Washington-based advocacy organization that is broadly supportive of Mr. Kushner’s reform efforts. “There’s a real struggle going on now about whether or not to reform the bureau, and it was increasingly clear that he wasn’t in a position to reform that agency.”...

Two senior White House officials said Mr. Kushner made a point of inviting Mr. Inch to meetings on the proposed legislation, but Mr. Sessions and his staff often sent other officials in his place. “The attorney general firmly stands behind the principles of prison reform,” said Sarah Isgur Flores, a spokeswoman for Mr. Sessions. “On this specific bill, we have worked closely with the team to offer suggestions that we believe will protect safety and improve rehabilitative outcomes.”...

For now, the Bureau of Prisons will be run by its former assistant director, Hugh J. Hurwitz, a career bureau official. Mr. Sessions was taken by surprise when Mr. Inch resigned and has not begun his search for a permanent successor, according to a Justice Department official.

Even without some form of prison reform legislation passing, the leader of the Bureau of Prisons is in a very important position for any and every federal defendant sentenced to any period of incarceration.  Who AG Sessions seeks to install in that role becomes even more important if (and I hope when) some form of federal prison reform gets enacted in the coming months.

May 25, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Thursday, May 24, 2018

Prez Trump posthumously pardons boxer Jack Johnson

As reported in this new CNN piece, "President Donald Trump on Thursday granted a posthumous pardon to boxer Jack Johnson on the advice of actor Sylvester Stallone."  Here is more:

"Today I've issued an executive grant of clemency, a full pardon, posthumously, to John Arthur 'Jack' Johnson ... The first African-American heavyweight champion of the world, a truly great fighter. Had a tough life," Trump said.  Trump was joined in the Oval Office by Stallone, current heavyweight champion Deontay Wilder, and Johnson's great-great niece Linda Bell Haywood, among others.

"We have done something today that was very important, because we righted a wrong," Trump said. "Jack Johnson was not treated fairly, and we have corrected that, and I'm very honored to have done it." Last month, Trump said he was considering the pardon....

Johnson, the first African-American world heavyweight boxing champion, was convicted in 1913 under the Mann Act for taking his white girlfriend across state lines for "immoral" purposes.  The Mann Act purported to prevent human trafficking for the purpose of prostitution, but critics have argued it was applied inconsistently to criminalize African Americans and those with dissenting political views. 

Johnson was convicted by an all-white jury in less than two hours and was imprisoned for a year.  The sentence and imprisonment destroyed the boxing career of the "Galveston Giant."  He died in 1946.

Stallone called Johnson an "inspirational character." "It's incredible that you've done this," the "Rocky" star told the President....

In 2016, then-Sen. Harry Reid, D-Nevada, and Sen. John McCain, R-Arizona, along with Reps. Peter King, R-New York, and Gregory Meeks, D-New York, petitioned the Obama administration to grant a pardon to Johnson. The bipartisan group of lawmakers sent a letter to the White House asking that the pardon be given in honor of the 70th anniversary of the boxer's death. "While it is unfortunate that this unjust conviction was not corrected during the boxer's lifetime, a posthumous pardon today represents the opportunity to reaffirm Jack Johnson's substantial contributions to our society and right this historical wrong," the letter said.

In March 2017, Sen. Cory Booker, D-New Jersey, joined with McCain, King and Meeks to reintroduce a resolution urging Johnson's pardon. "Despite this resolution passing both chambers of Congress several times in recent years, no pardon has been issued to date," McCain said in a statement at the time. "I hope President Trump will seize the opportunity before him to right this historical wrong and restore a great athlete's legacy."

In an era in which there are so many living people subject to excessive sentences and unfair convictions and collateral consequences, I am generally not a huge fan of posthumous pardons. But these kinds of actions reveal that a chief executive knows and is willing to acknowledge mistakes and injustices in the operation of the justice system, and (one hopes) they can serve as a precursor to more meaningful use of the clemency power on behalf of people still alive to benefit from it.

This USA Today article from last month provides an interesting review of two previous exampled of posthumous Prez pardons: "Bill Clinton and the Buffalo soldier" and "George W. Bush and the godfather of the Israeli air force"

May 24, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

"The Company Store: A Deeper Look at Prison Commissaries"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative.  This press release describes the report as a "first-of-its-kind data analysis [of] the economics of prison commissaries in three states."  Here is how the report gets started:

Prison commissaries are an essential but unexamined part of prison life.  Serving as the core of the prison retail market, commissaries present yet another opportunity for prisons to shift the costs of incarceration to incarcerated people and their families, often enriching private companies in the process.  In some contexts, the financial exploitation of incarcerated people is obvious, evidenced by the outrageous prices charged for simple services like phone calls and email.  When it comes to prison commissaries, however, the prices themselves are not the problem so much as forcing incarcerated people — and by extension, their families — to pay for basic necessities.

Understanding commissary systems can be daunting.  Prisons are unusual retail settings, data are hard to find, and it’s hard to say how commissaries “should” ideally operate.  As the prison retail landscape expands to include digital services like messaging and games, it becomes even more difficult and more important for policymakers and advocates to evaluate the pricing, offerings, and management of prison commissary systems.

To bring some clarity to this bread-and-butter issue for incarcerated people, we analyzed commissary sales reports from state prison systems in Illinois, Massachusetts, and Washington.  We chose these states because we were able to easily obtain commissary data, but conveniently, these three states also represent a decent cross section of prison systems, encompassing a variety of sizes and different types of commissary management.  We found that incarcerated people in these states spent more on commissary than our previous research suggested, and most of that money goes to food and hygiene products.  We also discovered that even in state-operated commissary systems, private commissary contractors are positioned to profit, blurring the line between state and private control.

Lastly, commissary prices represent a significant financial burden for people in prison, even when they are comparable to those found in the "free world."  Yet despite charging seemingly "reasonable" prices, prison retailers are able to remain profitable, which raises serious concerns about new digital products sold at prices far in excess of market rates.

May 24, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Wednesday, May 23, 2018

Two great new long reads from The Marshall Project

The Marshall Project is for me a regular must-read: my weekdays mornings start most days with its "Opening Statement" email full of all sorts of original and linked criminal justice stories.  Many days I find the "Opening Statement" a bit frustrating because it has more amazing content than I have time to read, and this morning was especially challenging because there were these two original pieces that are lengthy and more than worth the time:

"The Billionaire's Crusade: Broadcom's Henry Nicholas is spending millions to give victims a bigger voice, but not everyone agrees."

An excerpt: Six states have now passed some version of Marsy’s Law, which Nicholas shaped and named for his murdered sister. He has spent upwards of $25 million so far, according to campaign filings, and plans to spend millions more in pursuit of his goal: to get the amendment passed across the country and ultimately, onto the U.S. Constitution.

He’s on his way. This November, the measure will be on ballots in five more states: Oklahoma, Nevada, Kentucky, Georgia and Florida. At least five additional states are considering putting Marsy’s Law before voters in upcoming election seasons — efforts backed almost single-handedly by Nicholas. The measure promises an equal voice for victims in a system where the rights of defendants are constitutionally guaranteed. “We can all agree that no rapist should have more rights than the victim,” the Marsy’s Law website says. It is meant to protect people who have suffered a good deal already, and its appeal to voters is obvious: who is against victims?

But however well-intentioned, Marsy’s Law is drawing criticism from some unexpected quarters, including prosecutors and some victims’ rights advocates.

"Prosecutor Elections Now a Front Line in the Justice Wars"

In most district attorney elections, the campaign playbook is clear: Win over the local cops and talk tough on crime. But in California this year, the strategy is being turned on its head.  Wealthy donors are spending millions of dollars to back would-be prosecutors who want to reduce incarceration, crack down on police misconduct and revamp a bail system they contend unfairly imprisons poor people before trial.

The effort is part of a years-long campaign by liberal groups to reshape the nation’s criminal justice system.  New York billionaire George Soros headlines a consortium of private funders, the ACLU and other social justice groups and Democratic activists targeting four of the 56 district attorney positions up for election on June 5.  Five other California candidates are receiving lesser support.

The cash infusion turns underdog challengers into contenders for one of the most powerful positions in local justice systems, roiling conventional law-and-order politics.  The challengers have matched or surpassed the millions of dollars, largely from police, prosecutors and local business, flowing to incumbents unaccustomed to such organized liberal opposition.

May 23, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"Capitalizing on Criminal Justice"

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

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

May 23, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics

The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005.  This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:

Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.

About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.

This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned.  The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states.  This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology).  In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.

There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.

As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.

May 23, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (8)

Tuesday, May 22, 2018

FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain

The prospect of at least partial federal statutory criminal justice reform got that much brighter this afternoon when the US House of Representatives voted overwhelmingly in favor of the FIRST STEP Act.  The vote was 360-59, with Republicans voting 226 to 2 in favor of the bill (not doubt in part because of Prez Trump's strong advocacy for prison reform), and Democrats voting 134 to 57 in favor of the bill. Democratic opposition was certainly based on the failure of the bill to include any sentencing reforms, and this Reason article highlights why this reality might bode ill for the bill's prospects in the Senate.  The Reason piece has this fitting headline: "Prison Reform Bill Passes The House; Is Prison Reform Dead? The House passed a major, bipartisan prison reform bill backed by the White House, but it’s being attacked from all sides."  Here are excerpts:

The House passed legislation that would introduce several significant reforms to the federal prison system today, but the bill's future is uncertain and its passage has openly divided a criminal justice coalition that has worked together, at least in public, for the past several years.

The FIRST STEP Act, which includes a number of substantive changes to the federal prison and reentry system, passed by a vote of 360-59 and now goes to the Senate, but advancing to the White House is not a sure thing. Democrats are split on it, old-school conservatives are drumming up opposition from law enforcement groups, and progressive advocacy groups are attacking it from the left. Sen. Chuck Grassley (R-Iowa), the chair of the Senate Judiciary Committee and the Republican pointman on criminal justice reform, says the bill is dead in the water unless it includes major reforms to federal sentencing law as well.

Trying to keep the whole thing from falling apart are a bipartisan group of House members, the White House—where prison reform has been a priority for President Trump's son-in-law and senior adviser Jared Kushner—and criminal justice groups who say some progress is better than none.

"I think unfortunately there are groups that would like to see sentencing reform happen right now and are not willing to settle for less," says Jessica Jackson Sloan, co-founder of #Cut50, a group that works to lower the U.S. prison population. "In some ways it's strategic because they helped us to make this bill as good as it can be, but at this point it's splitting the Democrat vote and we need a strong show of support to have this taken up in the Senate."...

The bill has sharply divided Democrats. On one side is Rep. Hakeem Jeffries (D-N.Y.), the bill's co-sponsor, and others who say it would provide better conditions and the possibility of earlier release for the roughly 180,000 inmates serving time in federal prison. "Any objective reading of this bill is that it will improve inmates' quality of life," Jeffries said on the House floor prior to the vote.

On the other side are Democrats who say the good provisions in the bill are outweighed by core concerns over how the overcrowded, underfunded Bureau of Prisons system would handle the new programs and changes. In a "dear colleague" letter released last week, Sen. Dick Durbin (D-Ill.), Sen. Cory Booker (D-N.J.), Sen. Kamala Harris (D-Calif.), Rep. John Lewis (D-Ga.), and Rep. Sheila Jackson-Lee (D-Tx.) wrote that the reforms would fail without broader sentencing reforms....

Meanwhile in the Senate, Grassley and a bipartisan group of co-sponsors are pushing the Sentencing Reform and Corrections Act, which includes reductions to federal mandatory minimum sentences. The bill is the result of years of negotiation between Senate Republicans and Democrats, and the lead negotiators don't want to see their work languish.

"With the President's encouragement, I believe we can reach a deal on criminal justice reform," Grassley said in a statement Tuesday. "For that deal to pass the Senate, it must include sentencing reform. This is necessary for practical as well as political reasons."

However, sentencing reform is a non-starter for the White House, where Attorney General Jeff Sessions — a staunch opponent of criminal justice reforms — holds sway....

For supporters of the bill, the last few months have felt like an unending game of whack-a-mole. "One obstacle pops up and you knock it down," says Holly Harris, Executive Director at the U.S. Justice Action Network. "This has been a delicate dance from the beginning.  I think this will be the most well-vetted bill that Congress has seen in years. It's been a long time coming, and those who stand in the way of progress, those will be the losers in this situation."

Some of many prior related posts:

May 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Two new short essays providing ideas in criminal justice administration to think about for a long time

I have noticed these two notable new essays on SSRN that have the benefit of both being short reads with ideas worth thinking long and hard about:

"Classical Liberal Criminal Law" by Rachel Barkow

Abstract: This essay, written for a festschrift for Richard Epstein, argues that classical liberals should support robust constitutional protections in criminal matters.  It specifically highlights the need for robust Eighth Amendment review.

"Approaches to Federal Judicial History: The Federal Courts and Criminal Justice" by Sara Mayeux

Abstract: Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy.  What role has the federal judiciary played in this complex history?  This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state — even or especially those who do not define themselves primarily as legal historians — to join the conversation.  The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation.  This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

May 22, 2018 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Interesting report touts the potential economicy benefits of restoring felon voting rights in Florida

As regular readers know, I think there are an array of strong moral, social and political arguments for ending felon disenfranchisement.  But this local article from Florida, headlined "Price tag for restricting felons' rights after prison put at $385 million a year," reports on an interesting effort to make an economic argument for a ballot initiative in the state to expand the franchise. Here are the details:

Seven years after Gov. Rick Scott and the Florida Cabinet voted to end the state policy that automatically restored the civil rights of nonviolent offenders after they complete their sentences, a price tag has emerged.  Florida lost an estimated $385 million a year in economic impact, spent millions on court and prison costs, had 3,500 more offenders return to prison, and lost the opportunity to create about 3,800 new jobs.

Those are just some of the conclusions of a new economic research report prepared by the Republican-leaning Washington Economics Group of Coral Gables for proponents of Amendment 4, the proposal on the November ballot that asks voters to allow the automatic restoration of civil rights for eligible felons who have served their sentences.  The report was commissioned by the Alliance for Safety and Justice, a national criminal justice reform organization that works with crime survivors, to show the economic impact of approving the amendment.

But the findings show more than the economic impact of what could happen if voters approve it. They also estimate the cost of the policy that was fast-tracked into law by the governor and Cabinet a month after taking office in 2011, its impact on crime and its cost to taxpayers. Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam, and then-Chief Financial Officer Jeff Atwater repealed the automatic restoration of rights that had been in place for four years and replaced it with a plan requiring a minimum five-year waiting period before offenders could start the application process to have their voting and civil rights restored.

The action reversed the policy approved by the Cabinet in 2007 at the urging of then-Gov. Charlie Crist. Now, the only way a convicted felon can regain his or her civil rights is to wait five years and apply for a review at the state Office of Executive Clemency, which has limited resources and can take years....

The proposed amendment would restore rights automatically, except for those convicted of murder or a felony sexual offense. To come up with a price tag for the policy, economists looked at the data from 2007 to 2011 and compared it with current data. They focused on the recidivism rate, the number of released felons who returned to prison after being released and projected the costs and the impact those felons would have on the economy if they went to work instead.... By contrast, research shows that felons who have their voting rights restored, "have a greater ability to become full members of Florida’s society and economy, leading to a reduced rate of recidivism,'' the report said.

Before 2007, the recidivism rate for all felons was 33 percent, according to a 2011 report by the Florida Clemency Board. After Crist's policy, the average two-year recidivism rate for felons who had their rights restored was 12.4 percent, lower than the three-year average recidivism rate of all felons, which was 26.3 percent.

Under Crist, 155,315 offenders who were released got their rights restored. Under Scott, just 4,352 offenders have had their rights restored. Of those felons who have had their rights restored, less than 1 percent of them returned to crime and the average three-year recidivism rate for all felons in Florida in 2013 — the last year available — was 25.4 percent.

The governor's office disputes the claim that recividism rates dropped when more felons had rights restored. It argues the recidivism rate has been dropping in recent years in spite of the restrictive approach to rights restoration. Scott's office notes that the three-year recidivism rate has decreased from 30.5 percent for inmates released in 2007, the first year of Crist's policy, to 25.2 percent for inmates released in 2013, which is the latest data available and includes the last year of Crist's policy....

The report calculated the impact on the prison system and the courts using existing data on offenders and recidivism rates. It calculated the economic impact of their labor patterns on Florida using a model that considers the link between the demand one industry has on other industries. The report cites research that shows that felons earn less than average wages, and felons who do not have their voting rights restored earn 12 percent less than that.

"With higher incomes, eligible felons would be able to afford living in less-disadvantaged areas, which is associated with better employment outcomes after release and less recidivism,'' the report states. It estimates that employed eligible felons who had their rights restored would see an $88 million direct increase in income. That will ripple through the rest of the Florida economy, the economists said, "ultimately benefiting employment in many industries and Household Income for Florida residents, not just for the eligible ex-felon population."

The full research report referenced in this article is available at this link.

May 22, 2018 in Collateral consequences, Data on sentencing, Reentry and community supervision | Permalink | Comments (1)

Updated archive of European Union engagement concerning death penalty in the United States

I have the great honor and pleasure of talking today about the application of the death penalty in Ohio to a delegation of the European Union to the United States. Prior to the meeting, the EU delegation drew my attention to this online archive of (past) EU engagement in the US on death penalty.

This archive includes letters of appeal, official statements and the link, and it has been recently modified to update all the links, going back 18 years. Here is the description that sets up the links that follow:

The EU unconditionally supports the right to life and the right not to be subject to cruel, inhuman, and degrading treatment or punishment— standards recognized in the Universal Declaration of Human Rights, other international human rights agreements, and many national constitutions.

Abolition of the death penalty is a prerequisite for EU membership, and the European Union actively promotes a global moratorium on the use of the death penalty and protests against the practice in individual cases throughout the world.  The EU has insisted that bilateral extradition treaties with non-EU countries automatically preclude the use of the death penalty in all cases of extradited prisoners from EU Member States.

As a global leader in the fight against torture and other forms of ill treatment, the EU works to prevent and eliminate torture and to end the impunity of those responsible.  Through its Guidelines on Torture and Other Cruel, Inhuman and Degrading Treatment, the EU strives to persuade non-EU countries to produce and apply effective measures to outlaw torture.  The EU also champions anti-torture initiatives in international forums, consistently raises its concerns with other countries through political dialogue and bilateral initiatives, and provides substantial funding for relevant projects by civil society organizations.

May 22, 2018 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (6)

"Against Life Without Parole"

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

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992.  This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.  I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.  So, we can reject LWOP without abandoning retributivism — an important point, strategically and perhaps morally as well.

I then make the positive case for abolition, on three main grounds.  First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly.  Second, abolishing life without parole — and indeed all life sentences — is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out.  Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity.  Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier.

May 22, 2018 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12)

Monday, May 21, 2018

On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing"

The on-going debate over competing proposals for federal statutory criminal justice reform continues to fascinate me, but I am getting ever more troubled by suggestions from certain folks that the FIRST STEP Act is so bad and that the Sentencing Reform & Corrections Act is a so much better.  This new New York Times editorial, headlined "The Right Way to Fix the Prisons," reflects this thinking, and here are excerpts with passages stressed that particularly concern me:

For more than a decade, states of every political hue — from Texas and Louisiana to Connecticut and California — have been overhauling their criminal justice systems, to reverse the effects of decades of harsh and counterproductive policies.  But Congress has watched this revolution from the sidelines, thanks to reactionary lawmakers, including Mr. Sessions when he was in the Senate.  Comprehensive federal legislation has been foiled again and again, as states forge ahead, reducing both prison populations and crime rates through bipartisan reforms....

One bill backed by the White House, known as the First Step Act, would improve some prison conditions and help smooth the path to re-entry for people behind bars. It would, for example, require that inmates be housed within 500 miles of their families, prohibit the brutal but disturbingly common practice of shackling pregnant women and expand rehabilitative programs in which prisoners can participate to earn good-time credits.  These are all important and long-overdue fixes to existing law.

But the bill would leave it up to individual prison wardens to decide who gets to use their credits and when, which means inmates would be treated differently based on where they’re locked up.  The bill also restricts early release to halfway houses, even though as many as 40 percent of people behind bars pose no risk to public safety, according to a study by the Brennan Center for Justice, and would do fine with less intensive oversight, such as electronic monitoring.  On top of that, federal halfway houses are so underfunded that even inmates who are eligible for immediate release can’t go anywhere, because there aren’t enough beds available.

The biggest problem with the First Step Act, however, isn’t what’s in it; it’s what’s left out.  Specifically, sentencing reform.  Harsh sentencing laws passed in the 1980s and 1990s, like mandatory minimums of 10 or 20 years even for low-level drug crimes, have been among the main drivers of the nation’s exploding prison population....

Mr. Grassley is sponsoring the Sentencing Reform and Corrections Act, which would reduce the harshest sentences for nonviolent drug crimes and give judges more discretion to issue lighter sentences.  The bill nearly passed Congress in 2016, only to be killed by then-Senator Jeff Sessions.... Mr. Grassley’s bill has the support of top senators of both parties, as well as law-enforcement leaders and the Leadership Conference on Civil and Human Rights, a coalition of more than 200 civil-rights organizations.  It’s not perfect, but it’s far preferable to the First Step Act, which could get a vote in the House as soon as this week.

Meanwhile, liberal backers of the First Step Act, like Representative Hakeem Jeffries, the New York Democrat who is sponsoring the bill, argue that it’s better than nothing, especially in the current political environment. “We have a Republican president. Republicans control the House of Representatives and the Senate,” Mr. Jeffries wrote in letter to his colleagues on Friday. “Those are the facts.”

He’s right.  And yet a partial bill could end up being worse than nothing, especially if its benefits don’t live up to expectations, and if Congress, which has many other pressing matters to attend to, decides it’s had enough of the topic.  “Get a bill to my desk,” Mr. Trump said on Friday. “I will sign it.” If he means this, and if he genuinely cares about reforming the federal justice system, he’ll demand a bill that addresses the system’s most pressing problems.

Though this Times editorial references Rep. Hakeem Jeffries' extended letter defending the FIRST STEP Act, I wonder if the details of this important missive was fully understood.  That letter highlights that many of the prison reform provisions are MUCH improved in the FIRST STEP Act as compared to the SRCA.  Of particularly importance, the FIRST STEP Act includes the "Good Time Credit" fix, which serves functionally as a 2% across the board cut to prison terms for all current and all future federal prisoners.  There is no proper way to claim that a permanent and retroactive 2% cut in all federal prison terms "could end up being worse than nothing."  Moreover, it bears noting that the SRCA is anything but major sentencing reform, as it is only forecast to impact less than 5% of all cases annually under the US Sentencing Commission's estimates.  

In other words, the SRCA offers a worse version of prison reform cobbled together with a weak version of sentencing reform.  Even on the substantive merits, I am not sure I would prefer SRCA to the FIRST STEP Act.  (And of course, Congress has been trying to pass variant on the SRCA for now nearly half a decade to no avail.)   Most critically, the passage of the SRCA would be much more likely to bring what the NY Times fears, namely a reform bill that does not live up to expectations and yet allows Congress to feel it can move on after having done something "comprehensive."  In contrast, the FIRST STEP Act, if passed, will be in both name and spirit just what is needed here: a real improvement that is widely understood as only the first of many needed steps toward fixing a deeply flawed federal sentencing and prison system.

Some of many prior related posts:

UPDATE: This Politico article from Monday night, headlined "Trump-backed prisons bill DOA in the Senate," suggests that neither the FIRST STEP Act or the SRCA has much of a chance to make it through the Senate no matter what happens in the House.  Though the headline of this Politico piece is disconcerting, the full article is not quite so pessimistic and reinforces that Judiciary Chair Senator Chuck Grassley and Senate Leader Senator McConnell are the critical players for the future of any federal statutory criminal justice reforms for the foreseeable future. 

May 21, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

"Sex offender registry: More harm than good?"

The title of this post is the headline of this lengthy report appearing in The Connecticut Mirror. The piece is focused mostly on the history of, and debate over, the sex offender registry in The Constitution State, but much of the discussion has a universal quality to it.  Here is how it gets started:

In the 1990s, in response to a number of horrific and highly publicized crimes against children, states and the federal government created stringent penalties for sex offenders, notably registries where offenders’ names and addresses are available to the public.  But now critics across the country are demanding review and revision of these policies, saying they are based on false assumptions, are a waste of money and do more harm than good.

The registries and related policies “are absolutely and fundamentally flawed. They do nothing to support prevention, are not a deterrent and do nothing for people who have survived sexual violence,” said Prof. Alissa Ackerman of California State University Fullerton, a criminologist and national expert on the treatment of sex offenders.

In 2015 the Connecticut Sentencing Commission, at the behest of the General Assembly, began a lengthy examination of Connecticut’s “system of assessment, management, treatment, and sentencing of sex offenders.”  After a two-year study, the commission recommended changing the state’s public registry from one based on the offense — commit most sex-related crimes and you go on the registry — to one based on the risk an offender poses to the community, as determined by a new, eight-member Sex Offender Registration Board.  Individuals found to be low-risk — and some adjudged moderate-risk — would be on a registry only available to law enforcement personnel.

The proposal was crystalized into a bill introduced during the immediate past session of the General Assembly, though it failed to make it out of the Judiciary Committee.

State Sen. Paul Doyle, co-chair of the committee, said the complexity and emotional nature of the issue made it more appropriate for the longer session next year. “We never got to the merits. Leadership was not prepared to deal with it in a short session.” He said he personally would have had to do more research before deciding how to vote.

In a related matter, the nonprofit Connecticut for One Standard of Justice, which advocates for the civil rights of sex offenders, filed a federal lawsuit on April 4 seeking to overturn a Windsor Locks ordinance which bars persons on the sex offender registry from most public places in town. The town’s “child safety zones” include a “park, school, library, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility” either owned or leased by the town. The suit claims banning a group of people from these facilities is unconstitutional....

The registry and laws such as child protection zones are based on a set of assumptions that research indicates are highly questionable or outright false. The Sentencing Commission’s 204-page report calls them “myths.”  They include:

  • Nearly all sex offenders reoffend.
  • Treatment does not work.
  • The concept of “stranger danger” — that most sexual assaults are the work of people unknown to the victims.

“Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive,” the commission’s report says.

May 21, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

May 21, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

"President Trump supports prison reform"

85940444-fb0b-4222-9893-8d947ed60a7f (1)The title of this post is the heading of the lead item on "1600 Daily," the daily promotional email coming from the White House.  Here is what appears under the heading:

Crime imposes a significant burden on Americans' well-being and taxpayer-financed resources. These costs are amplified by re-arrest rates for released American prisoners that exceed 50 percent. Many programs have been tried to reverse this trend over the past few decades. Some of them work; some don't.

President Donald J. Trump supports prison reform legislation that builds on evidence-based programs to reduce prisoner recidivism rates. The President has called on Congress to help former inmates who have completed their sentences to have a second chance to become contributing members of society.

The White House hosted a summit on prisons last week. "Prison reform is an issue that unites people from across the political spectrum," President Trump said. "It's an amazing thing. Our whole nation benefits if former inmates are able to reenter society as productive, law-abiding citizens."

Learn how President Trump wants to fix America's prison system.

WatchHighlights from the President's remarks at the White House summit

This Fact Sheet (which is the first link above) strikes me as a reasonably detailed statement of reasonably progressive federal prison reforms (e.g., there is discussion of the need to "Expand access to prison work programs to allow all eligible inmates who want to work to gain job skills while incarcerated and prepare for successful reentry into society" and "Allowing BOP to place low-risk offenders in home confinement for the maximum amount of time permitted when appropriate" and "Requiring BOP to make female-healthcare products available for female prisoners").  I would be eager to hear from experts who are especially informed about prison reform and the federal system as to what particular prison reforms they see missing from these White House talking points.

Of course, criminal justice reform advocates are rightly troubled by this Administration's disaffinity for any front-end sentencing reforms.  The Fact Sheet notable states: "Rather than lowering sentences, the President supports reforms that empower prisoners participating in recidivism-reducing programming to obtain 'earned-time' credits."  I am not sure if this statement intimates that Prez Trump would veto a bill that included sentencing reforms, but I am sure this statement accounts from why so many GOP leaders are much more bullish on the FIRST STEP Act than on the SCRA.  

Some of many prior related posts:

May 21, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

May 21, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, May 20, 2018

"Punishing Risk"

The title of this post is the title of this new article on SSRN authored by Erin Collins.  Here is the abstract:

Actuarial recidivism risk assessments — or statistical predictions of the likelihood of future criminal behavior — drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions.  Recently, this predictive approach to criminal justice has entered a new arena: sentencing.  Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country.  This enthusiasm is understandable.  Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.  In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone.  And yet, that is precisely how those who endorse actuarial sentencing — including the American Law Institute in the recently revised Model Penal Code for Sentencing — suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information.  This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences.  Specifically, it contends that this practice distorts, rather than refines, sentencing decisions.  Moreover, it may increase reliance on incarceration — and for reasons that undermine the fairness and integrity of the criminal justice system.

May 20, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"

Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:

The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice."  That difference is the primary basis for the defendant's motion for a downward variance.  Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice.  He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds.  Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.

The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses.  In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines.  This sort of variance was for low level, non-violent, addict offenders.  This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....

Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case.  The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes.  Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255.  Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).  Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.

May 20, 2018 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Vera Institute of Justice reports on "People in Prison 2017"

Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:

Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).

There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline).  The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.)  This brings the rate of prison incarceration down 14 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee.  (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)

In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.

May 20, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Saturday, May 19, 2018

The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum

Politico has two fascinating new articles about on-going political debates and maneuvering surrounding the FIRST STEP Act.  That proposal, as reported here, received a 25-5 vote in favor in the House Judiciary Committee ten days ago, and it seems to be the top federal criminal justice reform bill with a real chance to get to the desk of Prez Trump in the coming months. Here are the full headlines and the start of each Politico article:

"Trump pushes for prison reform bill that divides Democrats: The split among Democrats over whether to support a narrow bill or push for sentencing reductions spilled into the open on Friday":

President Donald Trump on Friday embraced a bipartisan prison reform proposal, but a sharp divide among Democrats on the issue threatens to undermine the deal.  The discord was on display Friday as Rep. Hakeem Jeffries of New York circulated a scathing letter accusing fellow Democrats of trying to tank the effort by waging an opposition campaign “riddled with factual inaccuracies.” At issue is whether to move ahead with a more narrow overhaul or to hold out for a broader criminal justice bill that includes sentencing reductions.

Trump vowed in his remarks that his administration would make circumstances "far, far, far greater than ever before" for former prisoners looking to rebuild their lives.  But other leading Democrats are fighting Jeffries' approach, pushing for the sentencing reductions, which are opposed by the Trump administration. Jeffries' rebuke came in response to a letter [posted here] criticizing the narrower prisons bill circulated on Thursday by Senate Minority Whip Dick Durbin (D-Ill.) and Rep. John Lewis (D-Ga.), among others.

"Cotton jolts prison reform negotiations":

Multiple law enforcement groups say Sen. Tom Cotton’s office approached them about opposing a bipartisan prison reform bill — a key legislative priority for President Donald Trump — according to emails reviewed by POLITICO.

Cotton’s office says it made no direct request for groups to oppose the bill. But the outreach from the Arkansas Republican, one of Trump's closest allies in Congress, has left supporters of the prison reform effort suspicious that he is trying to tank the Trump-backed legislation before it reaches the Senate.

Cotton is a stalwart critic of broader criminal justice overhaul proposals but has yet to publicly come out against the narrower, prison-focused approach that Trump is backing. However, the emails reviewed by POLITICO show at least two leading law enforcement groups discussing a call by Cotton’s office this week for letters of opposition on prison reform ahead of a White House summit Friday on the issue.

In one instance, the request from Cotton’s camp appears to have lost the prisons bill a supporter: The Federal Law Enforcement Officers Association, which had declared its endorsement in February, wrote to House and Senate Republican leaders on Friday announcing it was reversing that position and would oppose the prison reform bill, citing changes made to the measure in recent weeks. A member of the organization said Cotton’s office had asked the group to send a letter of opposition, according to one of the emails reviewed by POLITICO. The FLEOA did not return a request for comment.

In a separate email shared with POLITICO, another top law enforcement group said it and other similar organizations had been contacted by Cotton’s office with a request to oppose the bill in writing.

Cotton spokeswoman Caroline Tabler said the office had not directly requested any public opposition. “Senator Cotton believes it’s important that we get prison reform right, and that any legislation must fully protect law-abiding Americans. He’s consulted with Arkansans and several law enforcement groups and is actively working with his colleagues to address his concerns with the current bill,” Tabler said in a statement.

I suspect that there are not many examples of Senator Tom Cotton and Senator Kamala voting similarly on a high-profile piece of legislation, but the latest news and developments concerning federal criminal justice reform suggests they may both end up voting no (albeit for different reasons) if and when the FIRST STEP Act comes up for a vote in the Senate. Interesting times.

Some of many prior related posts:

May 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Noting the distinctive juve sentencing realities to face the Texas school mass murderer

Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers.  This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:

The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.

Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....

The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.

For an adult, that sort of crime could lead to the death chamber.  Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.

At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors.  Only a few states — including Texas —  were the outliers still carrying out death sentences for those convicted of crimes committed as minors....

Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said.  Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.

Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles.  The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.

Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future.  During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."

Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.

May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)

Interesting discussions of new prison units dedicated to offenders who are veteran

The start of this local article, headlined "Allegheny County Jail designates cell block for inmates who are veterans," really struck me:

The new veterans pod at the Allegheny County Jail made David Francis feel welcome in a way he didn't experience when returning from Vietnam.  “(The pod) gives veterans hope where there hadn't been any,” Francis said.  “We were not liked when we came back from Vietnam.  We weren't welcomed in coming home.  It wasn't like other wars.  So this is a blessing.”

Here is more from the piece:

An American flag and other patriotic images are also painted near the pod's entrance — the work of three inmates over the weekend. The paintings are the only visual difference between the pod and others in the jail. It consists of two levels of cells in a circle surrounding a common area, where jail and county officials held a news conference Monday.

The difference, though, will be the specialized services offered to veterans, as well as a chance to interact with their fellow veterans on a daily basis. “We decided we need to do something for the veterans in our facility and prepare them for a successful re-entry into society,” said Warden Orlando Harper, an Army veteran himself.

At least 86 prisons and jails across the country have pods designated for veterans. Many of them have been created in the past five years, according to an Associated Press report in January. Nationally, veterans account for about 8 percent of all inmates....

Placing many of the jail's veterans all in one place makes it easier for organizations to serve them, as well as less costly for the county, officials said. “We want more veterans assistance programs,” Harper said. Many have already committed to participate.

The Allegheny Intermediate Unit will offer workforce literacy classes, including help with cover letter and resume writing, according to a county news release. Veterans Administration Veterans Justice Outreach will help the inmates apply for enrollment in the VA health care system, discuss treatment options and legal issues, along with presentations on post-traumatic stress, suicide prevention and job opportunities.

Organizations Soldier On; PAServes; the Veterans Leadership Program; the Duquesne School of Nursing; and Veterans Thinking for Change-Pittsburgh Mercy also have committed to providing services.

The AP article referenced above is available at this link and reports on some encouraging data emerging from this form of prison reform:

Inmates and officials say the Albany pod is cleaner and less troublesome than other tiers. When a guard was attacked here in 2016 by an inmate from another unit, the pod inmates ran from across the common area to the guard’s aid.

“We send all these young men and women overseas and when they come back, a lot of them with PTSD, domestic violence, drug issues,” said Albany County Sheriff Craig Apple, who started the veterans pod more than three years ago. “And I just felt we could have treated them better or done something for them.”

Apple said 6 percent of the roughly 331 participating veterans in Albany over the years have returned to jail, far better than the typical jail recidivism rates of more than 40 percent.

It helps that Soldier On also provides post-release services like housing.  So when Tommy Hartmann was released from the Albany jail last year after 90 days he had a place to go. The 29-year-old Army veteran moved into Soldier On’s transitional housing in Leeds, Massachusetts. He also got a job with Soldier On, on the resident staff.

When the group helped serve a holiday meal recently, Hartmann returned to his old block to chat up inmates he knew. This time he wore khakis and a tie. And he got to go home at the end of the night. “They set me up to succeed when I got out,” Hartmann said before his visit. “Rather than just sitting on the tier, playing cards, watching TV, doing pushups, whatever, I was doing positive stuff toward my recovery and becoming a better part in society.”

These stories lead me to want to call modern prison reform efforts another important way to support our troops.

May 19, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

"Federalism and Constitutional Criminal Law"

The title of this post is the title of this new paper authored by Brenner Fissell now available via SSRN.  As the title itself suggests, Eighth Amendment jurisprudence is among the area of Supreme Court decision-making discussed in this paper. Here is the abstract:

A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial.  The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?”

This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its restraint, this Article argues that federalism is not a universally effective argument against the imposition of these types of constitutional limits.  Instead, different variants of “federalism” vary in their strength when used to resist different types of constitutional rules, and often the federalism-based argument is unjustified.

May 19, 2018 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, May 18, 2018

Head of federal Bureau of Prisons abruptly resigns

As reported in this USA Today article, headlined "Federal prisons chief Mark Inch abruptly resigns from job he took over in September," while Prez Trump and others today at the White House were discussing federal prison reform, the head of the federal prison agency surprisingly resigned. Here is the story and possible backstory:

Mark Inch, the director of the embattled federal Bureau of Prisons, abruptly announced his resignation Friday, the Justice Department announced Friday. There was no immediate reason provided for the departure of Inch, who had just assumed leadership of the country's largest detention system in September.

In a brief statement, Attorney General Jeff Sessions thanked Inch for his service wished him "luck in his future endeavors." The attorney general did not elaborate. As director, Inch oversaw 122 detention facilities, 39,000 staffers and 186,000 inmates.

Inch’s resignation also comes as the White House was staging a summit Friday on prison reform. There, White House senior adviser and President Trump's son-in-law Jared Kushner commended Inch for his work on the Federal Inter-agency Reentry Council, though it was not clear whether he was aware of Inch's resignation. "We're working on the reentry commission, where the new director of the Bureau of Prisons, General Inch, has been working with Attorney General Sessions to look at all the different changes they can make in the prisons,” he said.

Hugh J. Hurwitz, assistant director of the BOP’s Reentry Services Division, will serve as acting director, Sessions said.

For the last year, the Bureau of Prisons has been the focus of a review by the House Oversight and Government Reform Committee, which has been examining allegations of sexual harassment, management retaliation against staffers and staffing shortages. Those shortages have routinely thrust nurses, teachers, food service workers and others to take up guard duty in under-staffed prison yards and solitary confinement wings.

Hundreds of non-custodial staffers were tapped last year to fill guard posts across the Bureau of Prisons because of acute officer shortages and overtime limits, according to prison records reviewed by USA TODAY and staff interviews. The moves were made despite repeated warnings that the assignments placed unprepared employees at risk. And the practice has continued for years even though the agency has been rebuked by Congress and federal labor arbitrators....

According to his Justice biography, Hurwitz began his career with the BOP as a law clerk in the Office of General Counsel in 1988. He went on to serve in three other agencies before returning to the BOP in 2015 as the senior deputy assistant director of the Information, Policy and Public Affairs Division.

May 18, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (6)

Prez Trump pledges to sign prison reform that will be "best in the world"

As reported in this CBS News piece, both President Trump and Vice President Mike Pence spoke at a prison reform summit the White House this morning. Here are some of the details:

Pence, taking to the podium, called prison reform a top priority for the Trump administration. Pence said the current prison system "too often" misses an opportunity to help improve people's lives, and instead just makes American communities more dangerous. Pence said the Trump administration will continue to hold accountable those who break the law, but also recognize that too many ex-offenders feel they have nowhere else to turn once they leave prison, and return to crime. "Prison reform is about changing lives, and about changing communities," Pence said.

The White House has hosted such discussions before, although not in such a large summit. But the reforms Mr. Trump's administration has floated before mostly entailed better preparing inmates for reentry and reducing recidivism rates, not the sentencing reform that liberals and some conservatives have hoped for in recent years. Trump son-in-law and senior adviser Jared Kushner, who has made prison reform a top issue in his portfolio, said Mr. Trump is "all in" on prison reform, but explained why the White House's focus is narrow for now.

"Sentencing reform is something that people still have different opinions on," Kushner said, noting how Washington has been unable to come to a consensus on the matter for years. Kushner said he thinks the country's system of governance works well, and requires intense deliberation on pivotal issues like prison reform.

I was able to hear live a few of the comments by Prez Trump, and he pledged to sign the prison reform bill Congress delivered to him and he closed by asserting, in Trumpian fashion, that the prison reforms would be the "best in the world." People who know about prisons around the world, particularly in Scandinavia and other part of Europe, surely realize that Prez Trump is setting quite a high bar for US prison reform. But I was please to hear him make this commitment and continue to be hopeful that the energized support of the Trump Administration helps ensure that at least some form of federal criminal justice reform becomes a reality this year.

May 18, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (7)

Death penalty restoration may get a vote in Illinois House

I have not blogged before about the recent suggestion by the Illinois Gov to restore the death penalty in his state, but this new article reports that the idea may now be headed toward a vote in the Illinois House.  Here are the details:

Democratic House Speaker Michael Madigan agreed Thursday to allow a vote on Gov. Bruce Rauner’s controversial plan to reinstate the death penalty and expand the waiting period to purchase firearms, creating a political minefield Democrats contend could hurt re-election-seeking Republicans more than themselves.

Madigan said the issues the Republican governor raised “deserve a full hearing and consideration before the House.” “We look forward to hearing from stakeholders and continuing our effort to keep our children, our schools and our communities safe from senseless gun violence,” Madigan said in a statement.

Rauner’s rewrite would create a 72-hour “cooling off” period to buy any firearm and reinstate capital punishment for slaying a law enforcement officer or in cases where two or more people are killed. A new bill containing the governor’s plan will be discussed by the House Judiciary Committee on Monday, and Democrats said Madigan intends for it to be eventually called for a full House vote.

The move provides some political insulation for Madigan, the chief political nemesis of the re-election-seeking governor. It prevents the governor from attacking the veteran House speaker for defending the lives of cop killers by blocking a vote on Rauner’s crime-fighting initiative. It’s doubtful the Rauner plan would pass the House, but Madigan’s move carries several political risks for individual lawmakers in both parties. It also creates significant complications for rank-and-file Republicans.

Lawmakers on both sides who vote against the measure could find themselves targeted by political opponents as being soft on crime and weak in their support of law enforcement by refusing to lift the state’s seven-year ban on capital punishment. That could particularly impact suburban Democratic lawmakers in a region where the party has made increasing inroads on traditionally Republican territory. Still, several lawmakers who served in 2011 when the state abolished the death penalty following a tarnished history of wrongful convictions are already on record with their vote.

The bill is more complex for Republicans. While reinstating the death penalty has its appeal to Republican voters, Rauner’s plan also would create a 72-hour waiting period for all guns, not just military-style firearms contained in the original bill. An expansion of the waiting period is opposed by the politically powerful National Rifle Association and is at odds with many voters in rural Illinois legislative districts represented by Republicans who champion their support for gun rights.

Kudos to leadership for allowing debate and a vote on these matters. Especially in an election year, voters should be able to know when their representatives stand on an array of high-profile political issues. I wish Senator Mitch McConnell and other GOP leaders in Congress would take a page from the folks in Illinois when it comes to allowing high-profile criminal justice issues like sentencing reform and marijuana reform get a fair up-or-down vote so that voters can know for sure where there representatives stand and so that proposals with majority support can actually become law.

May 18, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Thursday, May 17, 2018

Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform

As reported in this Politico piece, a set of "powerful Democrats stepped up their opposition campaign against a bipartisan bill on prison reform via a lengthy letter Thursday, their latest attempt to stamp out momentum for the proposal before it hits the House floor next week." Here is more:

The Democrats’ five-page opposition letter, which describes the bill as a “step backwards,” is just the latest volley in an ongoing battle over how far Congress should go this year to overhaul the nation’s criminal justice system.  The legislation is backed by the White House and could be the last real chance for a bipartisan success — no easy feat in a contentious election year — but has several key opponents, particularly in the Senate.

Rep. John Lewis (D-Ga.), the revered civil rights leader and one of the most influential members of the House Democratic Caucus, signed on to the letter.  Other Democrats already known to be opposed to the prison bill also added their names: Senate Minority Whip Dick Durbin of Illinois, Sens. Cory Booker of New Jersey and Kamala Harris of California, and Rep. Sheila Jackson Lee of Texas.

“We write to express our serious concerns with the First Step Act, legislation that purports to reform federal prisons but which would in fact be a step backwards,” they wrote. They go on to say that the bill, which would provide training programs for prisoners that are aimed at reducing repeat offenses, could actually have the opposite effect by putting in place policies that are more discriminatory toward inmates of color.

The letter — particularly Lewis’ opposition — could be a significant blow to efforts by the bill’s supporters to round up support ahead of an expected floor vote next week.  Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), lead authors of the push for prison reform, have been meeting with members since the bill sailed out of committee last week....

The letter takes several shots at the prison reform proposal, saying that it doesn’t provide enough funding to be effective and that Sessions, a vocal opponent of criminal justice reform, would have far too much autonomy over the new programs.

The bill has strong Republican support in the House — all but one Republican on the House Judiciary Committee, including several far-right members, backed the proposal. But the legislation has divided Democrats, particularly members of the Congressional Black Caucus and the Congressional Progressive Caucus.

Lewis’ opposition to the bill could be particularly influential for Democrats deciding how to vote.  But the bill’s authors can also point to several prominent backers on their side, including CBC Chairman Cedric Richmond (D-La.) and Rep. Keith Ellison (D-Minn.), a leading progressive.

The full five-page "Dear Colleague" letter is available at this link, and it reiterates a series of arguments that the progressive opponents of prison reform have been making for months. As I have said before, though I see merit in many of the criticisms of prison-only reform efforts, I struggle to see any path forward for more robust reforms in the immediate future.  (There is also the irony that the prison-reform provisions they criticize in the FIRST STEP Act also appear in the broader sentencing reform bill they promote as an alternative.) 

As I noted in this recent post, broader reforms have now been robustly discussed for the better part of a decade and they did not become law even when there was a supportive Prez and Attorney General.  Perhaps the authors of this letter have a viable plan for getting a better bill to the desk of the Prez and signed into law, but I know I am more than tired of waiting to see any kind of serious criminal justice reform passed by Congress.  (Keep in mind it has been a full eight years since the passage of the Fair Sentencing Act, the last notable statutory sentencing or prison reform, and that law only addressed one crime that makes up now less than 5% of the federal caseload.)

The strategy of hoping for more favorable political conditions for broader sentencing reform strikes me as an especially risky strategy given AG Jeff Sessions' obvious disaffinity for any reforms and his ability and eagerness to use any crime data and developments to make the case against reform.  If crime data in the coming months show a continued rise in crime, AG Sessions is sure to argue that cutting sentences at a time of rising crime is misguided; if data instead show a new decline, AG Sessions is sure to assert that his policy changes have been efficacious and that current law preserves the status quo. 

Some of many prior related posts:

May 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

May 17, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

"How should we deal with wrongdoing? And you can’t say ‘prison.’"

The title of this post is the headline of this notable new Washington Post commentary authored by Danielle Allen. I recommend the full piece, and here are excerpts:

How should a kid like Michael [involved in multiple armed robberies at age 15] be sentenced? How, more generally, should we respond to wrongdoing? Here’s my challenge to you: In my thought experiment, you can’t answer “prison.”

Given that constraint, what punishment should Michael receive? Here are our goals: We want to respond to wrongdoing so as to ensure that victims are made whole, that society is made whole, and that the wrongdoer, too, becomes whole and, having paid recompense, is prepared to contribute productively to society.

Does your mind draw a blank? If so, you are like most of us, accustomed to a system that thinks incarceration is the only way to respond to wrongdoing.

In the United States, 70 percent of our criminal sanctions consist of incarceration.  That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away.  In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs.

Germany and the Netherlands rely predominantly on fines, linked to the offender’s ability to pay, and “transactions” or community sanctions — for instance, work orders that benefit the community, or training orders, or a combination. Halfway houses connect residential oversight with supervised work opportunities, which can be connected to paying restitution to victims and the community.  The penal systems are built around the principles of rehabilitation, re-socialization and “association.”  This is the idea that a criminal sanction is more likely to result in a wrongdoer’s successful reentry to society if it works to strengthen, not damage, the wrongdoer’s positive connections to family and community....

Currently, two criminal-justice-reform strategies are moving through Congress. Last fall, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) introduced the Sentencing Reform and Corrections Act.  The act tackles the problem of mandatory minimums and seeks to “improve fairness in sentencing of low-level, nonviolent offenders,” so as to permit law enforcement to focus on “violent offenders, major drug traffickers and criminal masterminds.” This month, Sens. John Cornyn (R-Tex.) and Sheldon Whitehouse (D-R.I.), alongside Reps. Douglas A. Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), introduced a prison reform bill called the First Step Act.  This bill would offer individualized recidivism-reduction plans to all people incarcerated in federal prisons, and increase access to vocational training and educational support, as well as substance-abuse and mental-health resources. The bill would also introduce halfway houses or home confinement for the final phase of incarceration.

These bills have wrongly been cast as competitors.  If we are to undo mass incarceration, we have to envision viable alternatives to incarceration.  By making halfway houses and rehabilitative strategies central to our sanctioning system, the First Step Act would help the American public see new possibilities.  It could thereby lay the foundation for true transformation of sentencing.

Policymakers too often forget that three-quarters of their work should be winning the hearts and minds of the public.  To win sustainable, unwavering, widespread support for meaningful sentencing reform, we have to show that strategies of rehabilitation and restorative justice work.  Lawmakers should embrace the First Step Act as a necessary part of painting that new picture.  The Sentencing Reform and Corrections Act would benefit from our collective ability to imagine alternatives to incarceration.  

May 17, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (15)

Updated accounting of America's aging prison population

In this post four years ago, I spotlighted a notable white paper from The Osborne Association titled ""The High Costs of Low Risk: The Crisis of America’s Aging Prison Population." Today, via this Crime Report piece, I see that a new version of this paper is available at this link.  Here is the start of the Crime Report's review of its coverage:

At least one-third of the U.S. prison population will be over 50 by 2030, according to a white paper released Thursday by the Osborne Association.

The association, a New York-based advocacy group that works with justice-involved people and their families, cited figures showing that even as states are working to reduce prison populations, the number of older adults in prison and jail is projected to grow by a “staggering 4,400 percent” in the 50-year period between 1980 and 2030—to an estimated 400,000 people.

According to statistics quoted by the researchers, adults over 50 comprised just three percent of the total incarcerated population in 1993, representing 26,300 individuals.

“Justice isn’t served by keeping elderly people locked up as their bodies and minds fail them and they grow infirm and die,” said Elizabeth Gaynes, president and CEO of the Osborne Association, which advocates for improved conditions in prisons and jails, better discharge planning, and expanded compassionate release of the elderly and infirm. “It’s both inhumane and inefficient.”

According to the report, entitled “The High Cost of Low Risk: The Crisis of America’s Aging Prison Population,” extreme sentences doled out during the tough- on-crime era, as well as limited mechanisms for compassionate release, have driven what is now a costly and inhumane crisis that the corrections system is unequipped to manage.

The medical costs of caring for a burgeoning elderly population behind bars alone will add to the strains of resource-strapped corrections systems, many experts have said. According to data analyzed by the American Civil Liberties Union, it costs twice as much to incarcerate someone over 50; in some cases, it may cost up to five times more when medical costs are added.

Between 40 percent and 60 percent of prisoners over 50 have some type of mental illness or cognitive impairment, according to data from the Bureau of Justice Statistics. Some prisons are setting up makeshift hospice wings and opening nursing wards for people with serious cognitive degeneration.

Elsewhere, inmates suffer from such pronounced dementia that they are unable to follow rules, and may not remember why they are incarcerated. For many with cognitive, visual, or hearing loss, a diminished capacity leads to behaviors that are mistaken for disobedience, subjecting them to punishments such as solitary confinement.

Prisons were never designed to be geriatric care facilities and this surging elder incarceration comes at a high cost,” wrote the authors of the Osborne report. At the same time, research by the Pew Center on the States shows that incarcerated people over 50 pose little public safety risk, and have the lowest recidivism rate as any other inmate demographic.

May 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (15)

US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"

Cover_2018-crim-histAs reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:

Summary

The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.

While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender’s criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.

Key Findings

Key findings of the Commission’s study are as follows:

  • Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.

  • Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.

  • A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.

  • The nature of offenders’ criminal histories varied considerably by their federal instant offense.  The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders.  Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction.  Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).

  • Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines.  Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.

  • A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.

May 17, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (1)

Wednesday, May 16, 2018

Texas completes its sixth execution of 2018

As reported in this local article, in Texas "Juan Castillo was put to death Wednesday evening, ending his death sentence on his fourth execution date within the year."  Here is more:

The 37-year-old was executed for the 2003 robbery and murder of Tommy Garcia Jr. in San Antonio. The execution had been postponed three times since last May, including a rescheduling because of Hurricane Harvey.

Castillo's advocates and attorneys had insisted on his innocence in Garcia’s murder, pleading unsuccessfully for a last-minute 30-day stay of execution from Republican Gov. Greg Abbott after all of his appeals were rejected in the courts. The Texas Defender Service, a capital defense group who had recently picked up Castillo’s case, asked Abbott for the delay to let its lawyers fully investigate claims they said discredited the prosecution’s evidence against Castillo — including recanted statements and video of police interrogations that contradict testimony at trial.

But with no action from the governor, Castillo was taken into the death chamber in Huntsville, and at 6:21 p.m., injected with a lethal dose of pentobarbital, according to the Texas Department of Justice. Twenty-three minutes later, he was pronounced dead.... [H]e became the sixth person executed in Texas this year and the 11th in the country.

Texas appears to be on pace to return to its modern historical pattern of 10 or more execution per year.  As this Death Penalty Information Center chart reveals, from 1992 through 2015, the Lone Start State had 10 or more executions every single year save one year.  Over this 24-year period, Texas averaged more than 20 executions per year, including a single year high of 40 executions in 2000.  But in 2016 and 2017, Texas only executed 7 condemned inmates each year.  With six more executions scheduled in Texas before the end of September, it seems Texas is poised to regress toward its historical execution mean in 2018.

UPDATE:  I just saw this new AP piece reporting on two new Texas execution dates set for October "bringing to eight the number of inmates set for lethal injection in the coming months."

May 16, 2018 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (9)

A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform

This NPR piece from earlier this week, headlined "White House Adviser Jared Kushner Pushes Prison Reform Bill Forward," reviews the state of federal proposals in Congress with a few fitting flourishes about the continuing slog to get any form of criminal justice reform passes. These emphasized passages in particular prompted this post:

MARY LOUISE KELLY, HOST: There is some movement on the bipartisan effort to overhaul the nation's federal prisons.  The House Judiciary Committee recently advanced a bill to improve prison conditions, and the White House is also getting involved. Here to talk more about the effort is NPR's justice correspondent Carrie Johnson.  Hey there.

CARRIE JOHNSON, BYLINE: Hi, Mary Louise.

KELLY: So you've been covering plans it seems like for years, plans to change, upgrade, update the U.S. prison system. Get us up to speed.  Where do those plans stand?

JOHNSON: Well, last week the House Judiciary Committee voted 25 to 5 to approve legislation called the FIRST STEP Act.  That bill would make life a little bit easier for pregnant inmates. And it would offer programs prisoners could take to earn good time credits, credits for possible early release.... I'm hearing the bill could get a vote from the full U.S. House of Representatives next week before the Memorial Day holiday.

KELLY: All right, so that sounds promising.  But I gather there is a catch 'cause you're talking about the House and the Senate may be in a really different place.

JOHNSON: Mary Louise, there's a big catch.  For some justice advocates this legislation in the House is actually a step backwards, not forwards ... [as] this is not the same plan we've been talking about for six or seven years since the Obama White House. That bigger plan would touch tens of thousands of prisoners and change some of those tough mandatory minimum sentences for drug crimes, actually reducing the number of people who go behind bars in the first place.  What the House is doing now is a much smaller bite of the apple.  And people in the Senate, including the Republican chairman of the judiciary committee, Chuck Grassley, are now holding out for a lot more....

JOHNSON: Yeah. So [Jared] Kushner since he got to the White House has been holding roundtable discussions about this.  One of the people he's trying to partner with is the Texas senator John Cornyn, a member of the Republican leadership.  Cornyn has introduced a more modest version of prison reform as of last week.  It's a kind of a companion to the House plan we've been talking about.  And together Kushner and Cornyn are going to try to push the Senate to take up this legislation even though the leader of the Senate, Majority Leader Mitch McConnell, thinks that's a bad idea in an election year.  Now, experts who've been following these issues for a long time thinks it's - think it's going to be a tough slog, lots of talking, lots of energy. But in the end it's quite likely that Congress won't be able to get anything done.

KELLY: Wow. It sounds like you may have many more years to come of following person reform.

To review, then: there have been reform plans in Congress for years, and the leading "bigger plan" is one "we've been talking about for six or seven years" (but have not really even gotten close to passing).  But now that a seemingly viable smaller reform plan in the form of the FIRST STEP ACT (which, in fact, will "touch tens of thousands of prisoners") looks like it might make it through the House of Representatives this week, it appears Senate leaders are going to blocks its progress for various reasons.  Consequently, smart folks are predicting "lots of talking, lots of energy" to no effect, because "in the end it's quite likely that Congress won't be able to get anything done."  But at least Carrie Johnson (who is a terrific reporter) will likely have "many more years" to cover this particular story of congressional dysfunction. 

Some of many prior related posts:

May 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences? | Permalink | Comments (1)

"Will the Supreme Court Scrutinize Solitary Confinement? One Justice Offers a Map"

The title of this post was the headline of this Sidebar piece by Adam Liptak in yesterday's New York Times.  Here are excerpts:

Justice Anthony M. Kennedy is a fierce critic of solitary confinement. “It drives men mad,” he said in 2015 at Harvard Law School.  He attacked the practice in a 2015 concurring opinion. “Years on end of near total isolation exact a terrible price,” he wrote, noting that “common side effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors.”

Justice Kennedy concluded that opinion with an unusual request, inviting lawyers to file appeals challenging the constitutionality of prolonged isolation.  The requested appeals arrived, but the Supreme Court has so far turned them down.  The court, which typically moves in measured increments, may not want to take on a question as broad as whether extended solitary confinement is cruel and unusual punishment barred by the Eighth Amendment.

But the court will soon consider whether to hear appeals raising a much narrower question: Do prisoners held in solitary confinement have a right to regular outdoor exercise?

As it happens, Justice Kennedy has already answered that question.  Almost 40 years ago, not long after he became a federal appeals court judge, he wrote that prisoners held in solitary confinement have a constitutional right to a little fresh air once in a while.

“Some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates,” he wrote in 1979 for a unanimous three-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco. “It was cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside except for occasional court appearances, attorney interviews and hospital appointments.”

Justice Kennedy, who joined the Supreme Court in 1988, may now have the opportunity to establish that principle nationwide.  The new appeals were filed by several prisoners in Colorado. One of them, Donnie Lowe, 46, has spent almost his entire adult life in various prisons for various offenses.  He was held in solitary confinement for 11 of those years. Mr. Lowe’s lawsuit took issue with a decades-long blanket policy at the Colorado State Penitentiary that denied him outdoor exercise for the more than two years he was in solitary there....

The Supreme Court is not a fan of lawsuits seeking money from state officials for constitutional violations. But Mr. Lowe’s appeal, along with a companion case, present the court with the opportunity to tell the nation what the Constitution requires even if it rules in favor of the prison officials on the ground that the law used to be unclear. In a sign that the court might be interested in the cases, Lowe v. Raemisch, No. 17-1289, and Apodaca v. Raemisch, No. 17-1284, it ordered the officials to file responses to the plaintiffs’ petitions.

Justice Kennedy is nearing the end of a long judicial career, and he might think it fitting to return to an issue he considered just a few years after he first put on a robe. “Underlying the Eighth Amendment,” he wrote in 1979, “is a fundamental premise that prisoners are not to be treated as less than human beings.”

May 16, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (5)

Encouraging findings from big study of 16 prosecutor-led diversion programs in 11 jurisdictions

I saw today a big report from a big National Institute of Justice study on the topic of diversion programs.  This big report has this full title: "NIJ’s Multisite Evaluation of Prosecutor-Led Diversion Programs Strategies, Impacts, and Cost-Effectiveness."  And here is part of its executive summary:

In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition. Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed. With funding from the National Institute of Justice, the current study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs....

Case Outcomes, Recidivism, and Cost

  • Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude.  All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).

  • Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth).  The fifth site did not change re-arrest outcomes.

  • Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings.  Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers.  All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.

Conclusions

There were a number of important study limitations, including a focus on 16 high-volume diversion programs mainly located in large jurisdictions, a smaller number of study sites for the impact and cost evaluations, and limitations in the scope and quality of quantitative data available in some of the impact sites.  Understanding these limitations, we generally found that today’s prosecutor-led diversion programs pursue a wide range of goals, not limited to rehabilitation and recidivism reduction.  We also found that these programs serve a mix of target populations — including felonies as well as misdemeanors and, in virtually all programs we examined, including defendants with a prior criminal record.  Although it bears noting that we evaluated program impacts in a limited number of sites, meaning that our findings may not be generalizable to other sites and programs that we did not study, our research yielded positive results. Across five programs in three sites, diversion participants benefited from a reduced likelihood of conviction and incarceration; and in four of the five programs, pretrial diversion participation led to reduced re-arrest rates.  In addition, in all four programs where a cost evaluation was conducted, diversion cases involved a lesser resource investment than similar comparison cases.

May 16, 2018 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"The Right to Two Criminal Defense Lawyers"

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

In conjunction with a symposium on “disruptive innovation in criminal defense,” this article proposes that indigent defendants be assigned two lawyers each of whom would have primary responsibility for different functions -- the “settlement lawyer” would have responsibility for the counseling and negotiating roles while the “trial lawyer” would be the principal advocate. 

The proposal to divide defense representation between two lawyers, as a potential “disruptive innovation”, provides an occasion to consider various problems associated with indigent defense apart from underfunding and excessive caseloads.  These problems relate to how some defense lawyers think about and structure their work, where they choose to direct their energy and how they prioritize their time, how they respond to incentives, preferences and even unconscious motivations, and how they relate to prosecutors, clients or others in the criminal process.  Whether or not a right to two lawyers is realistically achievable, the proposal provides a vehicle for contemplating deficiencies in criminal defense representation and potential responses.

May 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, May 15, 2018

Lots of juvenile sentencing developments as Oklahoma sorts through application of Miller

Last week brought interesting developments in the arena of juvenile sentencing in Oklahoma thanks to all three branches of the state government.   As this local article details, the Oklahoma legislature earlier this month passed, with some controversy, a new law to seeking to operationalize existing Eighth Amendment limits on LWOP sentences for juveniles:

Senate Bill 1221 would put sentencing for teen killers in the hands of a judge, not the jury that convicted them....  The bill passed Wednesday in the state Senate would require judges to determine sentencing based on a number of factors including the underage killers’ maturity, psych tests, and take jury’s out of the sentencing equation.

But some lawmakers cried foul. “We are going to circumvent an Americans right to equal protection under the law because the kid is 17 years old not 21,” said Senator AJ Griffin (R) Guthrie....  “It’s disrespectful to the citizens of this state that elected us and put us here in order to do our job. If an adult deserves a jury a kid deserves a jury,” Senator Griffin said.

As this excerpt indirectly reveals, because jury sentencing is the norm in Oklahoma, this new law would have created a distinctive judge-centric sentencing procedure just for juvenile murders in Oklahoma.  But before Oklahoma's Governor acted on this bill, the Oklahoma Court of Criminal Appeals (the state's highest criminal court) handed down a big new juve sentencing ruling in Stevens v. Oklahoma, 2018 OK CR 11 (Ok. Crim. App. May 10, 2018) (available here). Stevens is yet another notable example of another state court working through just how Miller and Montgomery should be applied, and it includes these notable passages (with most cites removed):

In all future trials where the State intends to seek a sentence of life without the possibility of parole for an offender who committed his or her offense under the age of eighteen (18) years of age the State shall give notice of this fact by stating at the bottom of the Information in bold type: "The State is seeking the punishment of life without the possibility of parole for the offense of Murder in the First Degree, as Defendant (state last name here) is irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full discovery on this issue in accordance with established discovery law. 22 O.S.2011, § 2001 et seq. The assigned trial judge has the authority under our Discovery Code to issue any orders necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be separately determined from the enhancement of his or her sentence.... [E]ach party shall be afforded the opportunity to present evidence in support of its position as to punishment in the second stage of the trial. The trial court shall submit a special issue to the jury as to whether the defendant is irreparably corrupt and permanently incorrigible....

It is the State's burden to prove, beyond a reasonable doubt, that the defendant is irreparably corrupt and permanently incorrigible. Luna, 2016 OK CR 27, ¶ 21 n. 11, 387 P.3d at 963 n. 11; see also Ring v. Arizona, 536 U.S. 584 (2002) (holding facts increasing punishment beyond the maximum authorized by a guilty verdict must be proven beyond a reasonable doubt). The State shall have the opportunity to present any evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403. Generally, this will include, but not be limited to, evidence concerning the defendant's: (1) sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and (7) the likelihood of the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962; Cf. 10A O.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489 ("[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and (3) whether the circumstances suggest possibility of rehabilitation." Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962 (quotations and citation omitted).

If the sentencer unanimously finds that the defendant is irreparably corrupt and permanently incorrigible it is then authorized to consider imposing a sentence of life without the possibility of parole.  If the sentencer does not make this finding it is prohibited from considering a sentence of life without the possibility of parole and may only impose a sentence of life imprisonment.

Notably, Oklahoma's Governor followed up all this activity by vetoing the bill that would allow for juvenile sentencing to be before a judge.  Gov Mary Fallin's veto statement here states:

Senate Bill 1221, also known as the Alyssa Wiles Juvenile Life Without Parole Sentencing Act, has provisions that, are in my opinion, in violation of the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 132 SCt. 2455, 183 L.Ed.2d 407. That decision was followed by the Oklahoma Court of Criminal Appeals in its decision rendered May 10, 2018, in Roberts A. Stevens v. The State of Oklahoma. Case No. PC-2017-219.

In case anyone cares, I believe there is at least a plausible argument that Apprendi jurisprudence does not demand that a jury make the essential "findings" that Miller and Montgomery seem to make constitutionally required under the Eighth Amendment for sentencing a juvenile to life without parole.  Readers with long memories may recall that I have long argued that Blakely's Sixth Amendment rule makes most sense only when applied to offense facts rather than to offender characteristics.  The Supreme Court has vaguely, but not conclusively, rejected such a conceptual distinction in the reach of the Sixth Amendment.  But even though I can see possible constitutional uncertainty as to how offender-eligibility factors are must be adjudicated under the Supreme Court's Sixth and Eighth Amendment jurisprudence, I think it may well be sound practice for these kinds of determinations to be given to juries (perhaps particularly in a state with a strong tradition of jury involvement in sentencing decision-making).

May 15, 2018 in Assessing Miller and its aftermath, Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thoughtful BBC series of articles on "Criminal myths: Misconceptions about criminals and crime"

I just came across this series of special articles via BBC Future under the headine "Criminal Myths."  Here is how this introductory piece sets up what follows:

In both the UK and the US violent crime has recently been rising, records show. There are now also record numbers of individuals behind bars around the world, about 10.35 million, a figure that has increased by 20% in under two decades.  The highest number of these are in the United States, where those convicted are serving increasingly long sentences.

Among the prison population, 70,000 are women and girls, a figure that has been rising higher than for males.  A high proportion of women behind bars have mental health problems and have been victims of abuse.

Despite these rises, we are not living in the most violent era of history (in 1991 the violent crime figures in the US were about double those of today).  While in the UK, although police figures indicate that crime is rising, a national crime survey found that most crimes "either fell or were at a similar level".

Meanwhile in the Netherlands, prisons are closing due to a lack of inmates to fill cells, as our reporter discovered on a visit to a Dutch jail, though this does not necessarily mean that crime is dramatically falling. These examples show that statistics can be confusing, and there is often more going on than the numbers suggest, such as falling police officers, longer jail terms, to a rise in community sentencing.

That's why we are taking a look at some of these issues, to tackle the misconceptions about criminals and the factors that shape crime.

Here are the full headline of some of the articles in this series:

May 15, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Puzzling through the current politics of pursuing federal statutory criminal justice reforms

Rolling Stone has this notable new report on the latest politics surround federal criminal justice reform efforts under the headline "'We Don't Have to Worry About Senator Sessions': A look inside the Congressional battle for criminal justice reform." Here are excerpts:

Less than one month ago, there was no hope for any meaningful criminal justice reform to make its way out of this Republican-controlled Congress. But last week a large, bipartisan block of members of the House Judiciary Committee passed a narrow prison reform bill aimed at stemming the recidivism rate. That tees it up for a floor vote, even as many political watchers have predicted most major legislative efforts will be put on hold until after voters go to their polling booths in November.

"This is just a money and morals issue for me," Rep. Doug Collins (R-GA), who is one of the bill's lead authors, tells Rolling Stone.  "It's about money that we're saving by not only redirecting that in our prison system, but also the moral aspect that everybody deserves a second chance."

Collins was able to revive the effort by massaging the bill with his ally Rep. Hakeem Jeffries (D-NY), who represents Brooklyn and Queens and is a member of the Congressional Black Caucus.  The legislation sailed through their House committee by a lopsided 25-5 vote, but it faces stiff opposition in the Senate from those who want it to go much further in overhauling the nation's system of mandatory minimum prison sentences that critics say constrain the nation's judges and have left prisons brimming with nonviolent drug offenders.

"I'm disappointed, but it doesn't change anything that we have to do over here," Sen. Chuck Grassley, the chair of the Senate Judiciary Committee, tells Rolling Stone. "[Senate Minority Whip Dick] Durbin and I are working together to make sure that if there's going to be anything done on criminal justice reform, it's going to contain sentencing reform."...

Collins says they were able to revive the bill in the House because they narrowed its scope to win over Attorney General Jeff Sessions. "We're not dealing with sentencing reform at this point, and he understood that," Collins said.

In response to reports that Sessions supported the measure, a DOJ official tells Rolling Stone that Sessions did not, in fact, sign off on the House bill, and that he opposes it.  The official refused to elaborate on reasons why.

But Grassley maintains the attorney general is irrelevant on the issue – even though he's the top law enforcement official in the nation. "We don't have to worry about Senator Sessions," Grassley tells Rolling Stone. "Why's that?"

"We don't have to worry about Senator Sessions," he repeated. "You don't have to know why. We just don't have to worry about him."  Grassley's staff refused to answer questions as to whether the senator has been assured that Trump would sign a mandatory minimum bill over Sessions' protest, or, on a more sinister note, whether Grassley believes Sessions will remain in his current position as attorney general.

Independent of Sessions, however, it's unclear whether there's enough support in Congress to pass criminal justice reform that leaves mandatory minimums untouched. Supporters of the House bill argue that doing anything to help current prisoners escape the incarceration cycle is better than not sitting idly by.

"[Sessions] is an impediment, and I'd suspect Trump's people are basically against sentencing reform," Rep. Steve Cohen (D-TN) tells Rolling Stone. "To get sentencing reform is probably going to necessitate a Democratic Congress, so that'll come next year. There's no reason to have people sit in a jail for another year when they don't need to be."

To review: it seems we do not know if AG Sessions is formally for or against the prison reform bill, the FIRST STEP Act, that passed the House Judiciary Committee last week, and we do not know if Senate Judiciary Committee leaders (or other Senators) may be willing to move forward with this FIRST STEP Act. I continue to fear AG Sessions' general opposition to any meaningful reforms and Senate leaders' eagerness for sentencing reforms may mean nothing gets done to bring any relief to any federal defendant anytime soon.

Some of many prior related posts:

May 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Monday, May 14, 2018

"Killer Nanny" gets LWOP sentence plus 50 years for murdering kids in her care

Though I am never quite sure how often to blog about individual cases, I sometimes cannot resist reporting on the high-profile sentencing of defendants who get notorious monikers.  Today, as reported in this New York Daily News piece, the "Killer Nanny" got sentenced.  Here are some details:

The Upper West Side nanny who butchered two helpless children in 2012 was sentenced to life in prison without parole plus 50 years Monday, capping a harrowing story that has gripped the city for nearly six years.

Yoselyn Ortega, 55, was convicted of first-degree murder on April 18 after a heartbreaking two-month trial in Manhattan Supreme Court. The conviction, which carries a mandatory sentence of life without parole, sealed her fate of never seeing the light of day as a free woman.

It provided a much-needed measure of relief for the parents of 6-year-old Lulu and 2-year-old Leo Krim, who were savagely slain in the bathroom of their W. 75th St. home on Oct. 25, 2012, while the mom was out at a swim class with their middle sibling Nessie, then 3.

The children's parents, Kevin Krim, 42, and Marina Krim, issued statements thanking the judge and jurors and the district attorney's office. Marina Krim, 41, went a step further, and called out the "evil defendant" and her "entire family of bad, unethical people." Her husband echoed her sentiments, but dedicated his statement to memories of their two slain children....

At trial, Ortega's lawyer argued she should be found not responsible by reason of mental disease or defect — a bid the jury rejected after weeks of psychiatric testimony from experts on both sides. Ortega stabbed and slashed the adorable children in the rear bathroom of the second-floor apartment of the La Rochelle before plunging a kitchen knife into her own throat in a failed suicide attempt.

She settled her affairs by leaving her important documents for her sister and family heirlooms for her 17-year-old son — which prosecutors argued was proof she was of sound mind when she planned the unthinkable acts of that day.

Assistant District Attorney Stuart Silberg argued she was driven by spite aimed at Marina and rage over her own personal failures. "It was her intention to take their lives and to destroy the family," he said at the sentencing. "This defendant to this day has shown no remorse. She has never shed a tear for these children. Why isn't she in tears now?"

Little Lulu, who desperately tried to defend herself, sustained about 30 knife wounds, many defensive, while her kid brother suffered about five. Ortega cut them both across the throat leaving the tots no chance for survival. "Every stab, every slash — each one had a purpose and that purpose was to end the lives of those children," Silberg argued in summations....

Ortega also cried a little just before the sentence was imposed, framing herself as the real victim. "I'm very sorry for everything that happened, but I hope that no one goes through what I have gone through," she told the court.

May 14, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Interesting accounting of history and modern realities of victims' rights

The New Yorker has this notable lengthy new article authored by Jill Lepore under the headline "The Rise of the Victims’-Rights Movement: How a conservative agenda and a feminist cause came together to transform criminal justice."  The article covers lots history (with a particular focus on the importance of the Oklahoma City bombing) along with considerable law and policy (taking mostly a jaundiced view on victim rights). I recommend the piece in full, and here are a few excerpts:

Because victims’ rights is a marriage of feminism and conservatism, the logic behind its signal victory, the victim-impact statement, rests on both the therapeutic, speak-your-truth commitment of a trauma-centered feminism and the punitive, lock-them-up imperative of law-and-order conservatism.  Arguably, this has been a bad marriage....

Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.

How much evidence is enough, or too much?  Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless.  What kind of evidence is allowed?  Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.”  Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements.  Sorrow knows no bottom....

Thirty-two states have passed victims’-rights amendments; five more ballot initiatives may pass in November. Once enough states have acted, activists will again press for a federal amendment.  The last time the measure reached Congress, one of the prosecutors in the Oklahoma City bombing case argued against it (victims had tried to prevent one of McVeigh’s associates from signing a plea agreement in exchange for his testimony against McVeigh, which proved crucial in the trial).  [Paul] Cassell believes that there is much more work to be done.  The movement’s latest campaigns would expand the range of victim-impact evidence allowed in both capital and non-capital cases, and more strictly enforce victims’ rights that are already on the books.  In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing.  Tragedy is a fierce tailwind.  And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”

Critics remain.  Nancy Gertner, a former district-court judge from Massachusetts, is among those who have questioned Judge Aquilina’s conduct at Larry Nassar’s sentencing. Gertner told me, “The question is whether the victims needed that, as bloodletting, and the question is should the justice system allow that?  Or is it a throwback to public hanging?” Scott Sundby, a former prosecutor who studies capital juries, told me that the Nassar sentencing reminded him of Biblical punishments.  “Hey, we all get to pick up a rock and throw it at this person!”

May 14, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Among lots of CJ work, SCOTUS finds capital defendant's Sixth Amendment rights violated by counsel's unauthorized concession of guilt

The US Supreme Court got back to business this morning with a lot of notable activity in the criminal justice arena.  As noted in this prior post, there were a bunch of significant Dimaya GVRs.  In addition, the Court handed down five opinions in argued cases.  Four of the cases decided today involve criminal defendants, though the biggest of the rulings should also be of great interest to criminal justice fans as it addresses the relationship between federal prohibitions and state laws.  The federalism case, Murphy v. NCAA, No. 16–476 (S. Ct. May 14, 2018). (available here), may be of particular interest to advocates for state-level marijuana reforms, and I have this initial post on that case over at Marijuana Law, Policy & Reform.

Criminal procedure is the focal point of the four other SCOTUS cases handed down this morning: Byrd v. United StatesDahda v. United StatesMcCoy v. LouisianaUnited States v. Sanchez-Gomez.  This alphabetic list of these four rulings may also roughly approximate their order of importance/significance, though I welcome reader input on whether there are some important elements to a set of decisions that all seem somewhat narrow and fact-specific.  The ruling that may be of greatest interest to sentencing fans in McCoy, which split the Court 6-3 and starts with these paragraphs from Justice Ginsburg writing for the Court:

In Florida v. Nixon, 543 U.S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects,” id., at 178.  In that case, defense counsel had several times explained to the defendant a proposed guiltphase concession strategy, but the defendant was unresponsive. Id., at 186.  We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, id., at 181, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy, id., at 192.

In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. App. 286–287, 505–506.  Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” Id., at 509, 510.  We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands.  With individual liberty — and, in capital cases, life — at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.

May 14, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

A couple dozen Dimaya GVRs in federal criminal cases in latest SCOTUS order list

The US Supreme Court this morning handed down this order list, and criminal justice fans should take notice of the significant number of federal criminal cases in which certiorari is granted followed by the "judgments are vacated, and the cases are remanded to the United States Court of Appeals ... for further consideration in light of Sessions v. Dimaya." 

Based on a quick scan, it would appear that SCOTUS has now "GVRed" at least one of every type of post-Dimaya case that John Elwood flagged in this SCOTUSblog "Relist Watch" post a few weeks ago (though in one case it appears SCOTUS said the GVR was to allow further consideration in light of Beckles).

Long story short: the fall-out from the Dimaya vagueness ruling seems likely to take many months (perhaps years) and many rulings to sort out.  Of course, I said this same thing about the Johnson vagueness ruling in 2015, and Dimaya et al three years later is really just itself one big part of the post-Johnson fall-out.  And because Johnson was fundamentally the product of the late Justice Scalia's continued railing against the residual clause of the Armed Career Criminal Act, the long tail of the Johnson/Dimaya jurisprudence serves as an interesting (and perhaps never-ending) part of his constitutional legacy.

May 14, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)