Monday, November 9, 2015
Connecticut Gov calls for older teens to be treated as juves in state criminal justice system
As effectively reported in this local article, headlined "Malloy: Raise the age for juvenile justice system to 20," Connecticut's Governor Dan Malloy delivered a significant criminal justice policy speech on Friday focused on bail reform and juvenile justice. Here are some details:
"I would like to begin a statewide conversation about raising the age of eligibility for our juvenile justice system and considering how we think about our young offenders," Malloy said at the University of Connecticut School of Law in Hartford. "Let's consider this: age within our laws and criminal justice system is largely arbitrary…You can commit a nonviolent offense at 17 without a criminal record, but if you're 18 and you commit the same crime, it lasts a lifetime."
Malloy also would overhaul the bail system, always a politically fraught undertaking at the General Assembly, with the intention of ensuring that no one is jailed for want of a minimal bail, a change that one policy analyst said could shrink the state's jail population by up to 1,000 inmates.
He was the keynote speaker at an all-day symposium sponsored by the Connecticut Law Review. His audience included judges, prosecutors and the commissioner of correction, Scott Semple.
Malloy, a Democrat who won bipartisan passage earlier this year for a Second Chance Society initiative aimed at reducing incarceration for non-violent crimes, proposed that the records of those under 25 who commit less severe offenses be shielded from public disclosure and possibly expunged.
Malloy said such a change would "wipe the slate clean" for low-risk offenders that have not matured entirely. "Is it right that that 17 year-old can have a second chance but a 22 year-old cannot? This is the question that we should collectively answer," Malloy said. He intends to propose a package of reforms to the General Assembly for its 2016 session, which convenes in February.
The changes Malloy proposed would make Connecticut the first state in the nation to raise the age for its juvenile justice system past 18.... He said one inspiration for the idea came on a trip with Semple to Germany, where offenders are treated as juvenile up to age 20.
“This is uncharted territory in terms of going that far," said David McGuire, the legislative and policy director for the American Civil Liberties Union of Connecticut. "It makes a lot of sense. It will save a lot of lives. It will really impact an entire generation."
In 2007, state lawmakers changed state law so that 16- and 17-year-olds charged with less serious offenses enter the juvenile justice system, where they are often provided with a range of community-based supports, rather than automatically being sent to the adult court system. A study commissioned by the state before the age was raised to 18 found that up to 75 percent of teenagers sent to the adult system were receiving no rehabilitative services. And the services other teens received were subpar, according to the study.
Malloy said the current age is still too low. "It's time to think about changing the artificial barriers that we imposed. It's time that we get it right. For that reason we need to take a different approach for these young adults between the ages of 18 and 24," Malloy said, pointing out that many of these young offenders are victims of trauma.
Sunday, November 8, 2015
California (finally!) officially announces switch to one-drug lethal injection protocol
California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol. This extended Los Angeles Times piece provides the details and the back-story:
California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.
The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.
Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....
The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.
The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.
He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.
Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.
At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.
Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.
California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....
California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.
A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.
"How Doctors Helped Drive the Addiction Crisis"
The title of this post is the headline of this extended New York Times op-ed authored by Richard Friedman, which reinforces my long-standing view that drug use/abuse and related social ills are most properly considered and addressed as public health concerns rather than criminal justice issues. Here are excerpts:
There has been an alarming and steady increase in the mortality rate of middle-aged white Americans since 1999, according to a study published last week. This increase — half a percent annually — contrasts starkly with decreasing death rates in all other age and ethnic groups and with middle-aged people in other developed countries.
So what is killing middle-aged white Americans? Much of the excess death is attributable to suicide and drug and alcohol poisonings. Opioid painkillers like OxyContin prescribed by physicians contribute significantly to these drug overdoses.
Thus, it seems that an opioid overdose epidemic is at the heart of this rise in white middle-age mortality.... Driving this opioid epidemic, in large part, is a disturbing change in the attitude within the medical profession about the use of these drugs to treat pain....
[S]tarting in the 1990s, there has been a vast expansion in the longterm use of opioid painkillers to treat chronic nonmalignant medical conditions, like lowback pain, sciatica and various musculoskeletal problems. To no small degree, this change in clinical practice was encouraged through aggressive marketing by drug companies that made new and powerful opioids, like OxyContin, an extendedrelease form of oxycodone that was approved for use in 1995....
The consequences of this epidemic have been staggering. Opioids are reported in 39 percent of all emergency room visits for nonmedical drug use. They are highly addictive and can produce significant depressive and anxiety states. And the annual direct health care costs of opioid users has been estimated to be more than eight times that of nonusers.
But most surprising — and disturbing — of all is that there is actually very weak evidence that opioids are safe or effective for the longterm treatment of nonmalignant pain. So how did they become so popular for these uses? A large review article conducted between 1983 and 2012 found that only 25 of these were randomized controlled trials and only one study lasted three months or longer. The review concluded that there was little good evidence to support the safety or efficacy of longterm opioid therapy for nonmalignant pain....
What is really needed is a sea change within the medical profession itself. We should be educating and training our medical students and residents about the risks and limited benefits of opioids in treating pain.... It is physicians who, in large part, unleashed the current opioid epidemic with their promiscuous use of these drugs; we have a large responsibility to end it.
This commentary fittingly highlights that, in modern times, doctors and Big Pharma are the most significant (and potentially dangerous) drug dealers for most Americans. It also informs my own disinclination to defer completely to doctors and Big Pharma when they express concern about the potential harms of marijuana reform or to trust politicians when they suggest doctors and Big Pharma should guide us through modern marijuana reform debates. When it comes to pain management and the developments of safe drugs to treat chronic pain, doctors and Big Pharma have a track record in recent decades that should prompt much more suspicion than confidence.
Some prior related posts:
- "Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
- Gendered perspective on Ohio's challenges with opioids and prison growth
- "Prisons Are Making America's Drug Problem Worse"
- Following the money behind sustaining pot prohibition
- "Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"
Saturday, November 7, 2015
Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids
As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:
In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.
The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”
Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.
Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.
Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.
Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....
In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...
Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.
The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.
Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.
"Incentives Structures and Criminal Justice"
The title of this post is the title of this interesting article authored by Aurelie Ouss now available via SSRN. Here is the abstract:
The conventional assumption in economics of crime is that criminal justice system actors behave like social planners, choosing punishment levels to equate the marginal benefits and costs from society’s perspective. This paper presents empirical evidence suggesting in practice, punishment is based on a much narrower objective function, leading to over-incarceration. The costs and benefits of various punishment options are reflected at different government levels in the US.
The 1996 California Juvenile Justice Realignment can be used as a natural experiment: it shifted the costs of juvenile corrections from states to counties, keeping overall costs and responsibilities unchanged. Moving the cost of incarceration from state to counties resulted in a discontinuous drop in the number of juveniles being sent to state facilities, but no change in juvenile arrests.
This indicates that when costs and benefits of incarceration are not borne by the same agency, there is excess incarceration: not only is there more demand for prison than when costs are fully internalized; but there are no gains in terms of crime reduction from this extra incarceration.
Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade
I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000. I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.
I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity). I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.
Some more highlights from a busy week at Marijuana Law, Policy and Reform
Though I previously highlighted here my reactions to this past week's big Ohio vote on a controversial marijuana reform initiaitve, lots more of note happened nationally and internationally this past week in the marijuana reform space. Here are some posts covering some of the developments from Marijuana Law, Policy & Reform:
A citizen's notable (and radical?) suggestions for improving the Ohio execution process
Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:
Dear Mr. Berman,
In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.
Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.
I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life. Although the suffering of these dying criminals does not seem unfair.
But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all. As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.
I call this the 'Total Blood Withdrawl' execution. I wrote the protocol for this method. Maybe Red Cross can use the blood.
Let's use this transition method to a day when there will be no more executions.
I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.
Friday, November 6, 2015
SCOTUS grants review on federal/international sex offender registration issue
The big news from the US Supreme Court's order list this afternoon is the grant of review on another issue concerning the intersection of religious liberty and Obamacare requirements. But sentencing fans might be interested to see SCOTUS also took up a federal case involving sex offender registration laws: by granted cert on just question 1 in the case of Nichols v. United States, the Justices will consider later this Term "whether 42 U.S.C. $ 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals."
November 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)
"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"
The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:
Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.
This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.
Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)
This DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year. Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.
Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded. For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep.
Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers. Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives. But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.
Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015. Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates. I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns.
Thursday, November 5, 2015
Lots of interesting commentary on lots of interesting criminal justice topics
Every so often I have a day when, after spending just a little time surfing the web, I find a whole lot of materials that merit a read and attention. Today is one of those days, and here is a round-up of pieces that perhaps all merit their own post:
From the Boston Globe (authored by former Judge Nancy Gertner), "Undoing the damage of mass incarceration"
From The Brennan Center for Justice, "The U.S. Prison Population Is Down (A Little)"
From the Crime Report, "Criminal Justice Reform Without Borders"
From The Huffington Post, "When GEDs Mean Failure for Prisoners"
From Mother Jones, "America’s Prison Population Is Falling, but Too Slowly to Undo Decades of Growth"
From USA Today, "More than a decade after release, they all come back"
From the Wall Street Journal, "Time to Kill the Federal Death Penalty"
From the Washington Post, "Ohio said no to legalizing marijuana. It might have nixed federal reforms, too."
Also from the Washington Post, "A bipartisan failure in talking about prisons and the ‘war on drugs’"
"Proposition 47 Progress Report: Year One Implementation"
The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law." Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others. Here are the short report's "Key Findings" (without the many footnotes):
Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.
According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative. Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.
According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015. In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.
According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.
Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year. Long term annual savings are estimated at $93.4 million. These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims. In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.
Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison. Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.
Reviewing oral arguments during a dynamic SCOTUS criminal justice week that was
As detailed in this post at the start of this week, the US Supreme Court heard oral arguments this week in six cases, four of which involved criminal law issues. Drawing from the always-terrific SCOTUSblog coverage of the work of the Justices, here are links to reviews of the arguments in the cases:
"Prosecutors are addicted to the War on Drugs: Inside law enforcement’s rabid defense of mandatory minimums"
The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:
Federal prosecutors are fighting a rearguard action to defeat criminal justice reform legislation in Congress, warning that modestly dialing back harsh mandatory minimum sentences for nonviolent drug offenders would hinder their campaign against drugs amidst a heroin crisis.
“Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations,” a National Association of Assistant United States Attorneys white paper on “the dangerous myths of drug sentencing ‘reform'” warns. Reduced sentences “threaten the prosecution of many of the most dangerous and high level criminals involved in drug trafficking by undermining the cooperation incentive that the current sentencing structure creates.”
Because of harsh mandatory minimums in federal and state law, many nonviolent drug dealers have been sentenced to spend much of their life behind bars — including sentences of life without parole — for crimes as minor as delivering LSD to fellow Deadheads. Defending the justice or proportionality of such sentences is a rather difficult task. So NAAUSA isn’t focusing on that. Instead, the group, which represents many federal prosecutors, is warning that they need the threat of harsh sentences to scare low level offenders into selling out their superiors: the big-time kingpins who have blood on their hands.
“The leverage, the hammer we have comes in those penalties,” federal prosecutor and NAAUSA president Steven H. Cook told the Washington Post in an article highlighting the group’s case against reform. “It is the one and only tool we have on the other side.”...
Cook concedes that prosecutors need the threat of draconian sentencing to tip the scales of justice in their favor, scaring defendants into pleading guilty and snitching. In 2013, more than 97 percent of all federal cases that weren’t dismissed (which was just 8 percent) ended in guilty pleas. The practice effectively denies people their constitutionally-enshrined right to trial, deprives judges of their role, leads to the conviction of the innocent, and disproportionately punishes people who simply lack information to trade.
“I can understand prosecutors who want to have their jobs made easier by maintaining mandatory minimums in their current form,” says Michael Collins, deputy director of the Drug Policy Alliance’s Office of National Affairs. “At the end of the day, the criminal justice system does not exist to make the workload of certain individuals easier.”
That federal prosecutors are defending mandatory minimums in such instrumental terms might be a concession that they can no longer make a compelling argument that such harsh sentences fit the crimes for which they are imposed....
The federal drug war grinds on despite the Obama Administration’s calls for moderation. Most notably, Cook makes the startling suggestion, according to the Post, that then-Attorney General Eric Holder’s 2013 memo calling for U.S. Attorneys to limit the use of mandatory minimums is being ignored or resisted by some prosecutors....
Cook emails that “one of the fundamental concepts of any criminal justice system is that it have a deterrent effect. Long prison sentences serve to deter people. Trafficking in heroin is a highly profitable business and to offset the attractiveness we have to make the cost of engaging in that activity high.”
But there is no evidence that harsh prosecutions actually do anything to keep heroin off the streets and out of users noses and arms. To the contrary, the evidence shows that the drug war has entirely failed to limit heroin supply if we look at two standard measures: price and purity. According to a 2012 Global Commission on Drug Policy report, “since the early 1980s, the price of heroin in the US has decreased by approximately 80 percent…and heroin purity has increased by more than 900 percent.”
Indeed, the irony is that many of the most dangerous things about heroin use are created not by the drug — which is no doubt plenty dangerous and addictive — but by its prohibition, which make it difficult to measure dosage and detect dangerous adulterants like fentanyl.
The current push for reform is modest and will by no means even come close to ending mass incarceration. But it is nonetheless historic and significant for those whose lives will be somewhat less ruined if it is passed and signed into law. The legislation has received bipartisan support, extending beyond Congress to odd-bedfellow advocates like the ACLU, Koch Industries and a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration.
Doug Jones, a member of the law enforcement reform group and the former US Attorney for the Northern District of Alabama, says that he understands that prosecutors are concerned for their communities and also, he says, with managing their heavy caseloads. But he says that pro-reform law enforcement officials “are looking at a broader perspective” that takes account of the toll of having some of the highest incarceration rates on earth. “More incarceration is not necessarily the safest way to do things.”
To make his case, Cook is trying to turn the political clock back to 1990, warning that “reforms” may already be causing “homicides and other violent crimes” to be “spiraling upward in cities across the country.” This is similar to the argument in favor of a so-called “Ferguson effect,” the idea that increased scrutiny of police has deterred them from doing their job and thus caused more crime. This idea persists despite statistics showing that there is no demonstrable nationwide violent crime spike. In reality, violent crime has continued its long decline....
Cook states that harsh mandatory minimums are “the one and only tool we have.” But prosecutors, as evidenced by the fact that so few cases ever make it to trial, wield incredible power in the courtroom and have too often supplanted judges as the real arbiter of justice. In a just society governed by the rule of law, the only tool that prosecutors are supposed to have in court is evidence that proves beyond a reasonable doubt that a defendant committed a crime. And when they prove it, the punishment should be proportionate.
As American Bar Association standards state, “The duty of the prosecutor is to seek justice, not merely to convict.” For many federal prosecutors, however, the maximum amount of incarceration is still the favored solution.
US Sentencing Commission hearing about how to fix Johnson problems in sentencing guidelines
As this webpage reports, this morning the US Sentencing Commission is holding a public hearing in Washington, DC "to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines." This hearing is being live-streamed here, and this hearing agenda now has links to all the scheduled witnesses' written testimony.
Helpfully, the start of this written testimony from the first witness, Judge Irene Keeley, Chair, Committee on Criminal Law of the Judicial Conference of the United States, provide a useful overview of what the USSC is working on:
On behalf of the Criminal Law Committee of the Judicial Conference of the United States, I thank the Sentencing Commission for providing us the opportunity to comment on proposed changes to the sentencing guidelines definitions of “crime of violence” and related issues. The topic of today’s hearing is important to the Judicial Conference and judges throughout the nation. We applaud the Commission for undertaking its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction and the impact of such definitions on the relevant statutory and guideline provisions. We also thank the Commission for considering whether to promulgate these guideline amendments to address questions that have been or may be raised by the Supreme Court’s recent opinion in Johnson v. United States, 135 S. Ct. 2551 (2015).
The Judicial Conference has authorized the Criminal Law Committee to act with regard to submission from time to time to the Sentencing Commission of proposed amendments to the sentencing guidelines, including proposals that would increase the flexibility of the guidelines. The Judicial Conference has also resolved “that the federal judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable, and flexible.”
As I discuss below, the Criminal Law Committee is generally in favor of the Commission’s proposed amendments, particularly those intended to address or anticipate questions raised by Johnson. As you know, the definition of the term “crime of violence” for purposes of the career offender guideline has been the subject of substantial litigation in the federal courts. We support any efforts to resolve ambiguity and simplify the legal approaches required by Supreme Court jurisprudence. Additionally, our Committee has repeatedly urged the Commission to resolve circuit conflicts in order to avoid unnecessary litigation and to eliminate unwarranted disparity in application of the guidelines. The Commission’s proposed amendment would reduce uncertainty raised by the opinion while making the guidelines more clear and workable.
With regard to the proposed guideline amendments concerning issues unrelated to Johnson, the Committee generally supports or defers to the Commission’s recommendations. The Committee opposes amending, however, the current definition of “felony” in the career offender guideline. Finally, the Committee supports revising other guidelines to conform to the definitions used in the career offender guideline to reduce complexity and make the guidelines system more simple and workable.
November 5, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
Wednesday, November 4, 2015
"Death sentences are down across the country — except for where one of these guys is the defense attorney."
The title of this post is the subheadline of this notable new Slate commentary authored by Robert Smith. The piece merits a full read, and here are some excerpts:
“He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row....
Carr might not visit his capital clients very often, but he does seem to be dedicated to his job — his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services — even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)
Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.
One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy — they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.
Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row....
Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana. MO When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)...
The quality of defense representation in capital cases has substantially improved in many places. But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana....
In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.
My (too quick) post-election reaction to Ohio marijuana reform efforts
As promised in this prior post, today I have been blogging some more detailed reactions to the big Ohio vote on a controversial marijuana reform initiaitve over at Marijuana Law, Policy & Reform. Here are some of my first few posts (on which I would welcome reactions here or there):
Notable USSC member, Judge Bill Pryor, responds to Rep Goodlatte's attack on USSC
As noted in this prior post, titled "House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform," a notbale member of Congress recently authored this notable attack on the recent work of the US Sentencing Commission reducing federal drug sentences. Interestingly, a notable member of the Commission, 11th Circuit Judge Bill Pryor (who was the attorney general of Alabama from 1997 to 2004), has now authored this response, which runs in the National Review under the headline "In Defense of the U.S. Sentencing Commission." Here are excerpts:
On November 2, Representative Bob Goodlatte, who chairs the House Judiciary Committee, published an article in National Review Online attacking the 2014 decision of the U.S. Sentencing Commission to reduce sentencing guidelines for federal drug offenders. If you were to read Chairman Goodlatte’s article with no knowledge of federal law, you would think that the Sentencing Commission operates “irresponsibly” and “recklessly,” without congressional oversight, and sets sentencing guidelines “without regard to an inmate’s criminal history and public safety.” Nothing could be further from the truth....
When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition. In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.
Now that the commission’s decision is being implemented without objection from Congress, Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority. Indeed, Congress required the commission, whenever it lowers any guideline, to consider whether to make that change retroactive. And every retroactive change becomes effective only after Congress has had the opportunity to reject that decision. Congress again did not reject the decision to make the changes in drug sentencing retroactive, and Chairman Goodlatte did not schedule a hearing about it.
Moreover, when the Commission makes a change retroactive, each inmate must go before the sentencing judge, who must then consider whether the inmate should receive a reduced sentence under the new guideline. A retroactive guideline is not a get-out-of-jail-free card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence....
Chairman Goodlatte referred to the commission as a group of “unelected officials” that is “going about sentencing reform in the wrong way,” but he failed to mention that Congress, with the support of the Reagan administration, created the commission as a permanent agency to consider and make needed sentencing reforms. The commission has seven members appointed by the president and confirmed by the Senate for fixed terms. By law, at least three members must be federal judges, and the membership must be bipartisan. For example, I was appointed to the commission by President Obama based on the recommendation of Senate Republican leader Mitch McConnell. The commission conducts public hearings and considers thousands of public comments before changing any guideline. And our decision to change the drug guideline and to make it retroactive was unanimous....
I and other members of the commission support Chairman Goodlatte’s goal of saving taxpayer dollars, reducing prison overcrowding, and making drug sentencing fair and responsible. We look forward to working with him and other members of Congress toward those ends. But he should not pretend that the independent and bipartisan Sentencing Commission is some sort of bogeyman working against those interests. Nothing could be further from the truth.
November 4, 2015 in Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Tuesday, November 3, 2015
Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution
As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:
Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.
The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....
Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....
Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.
He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.
The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.
"Banishing Solitary: Litigating an End to the Solitary Confinement of Children in Jails and Prisons"
The title of this post is the title of this notable new paper by Ian Kysel available via SSRN. Here is the abstract:
The solitary confinement of children is remarkably commonplace in the United States, with the best available government data suggesting that thousands of children across the country are subjected to the practice each year. Physical and social isolation of 22 to 24 hours per day for one day or more, the generally accepted definition of solitary confinement, is used by juvenile detention facilities as well as adult jails and prisons to protect, punish and manage children held there.
The practice is neither explicitly banned nor directly regulated by federal law. Yet there is a broad consensus that the practice places children at great risk of permanent physical and mental harm and even death, and that it violates international human rights law. Policymakers and judges in the U.S. are beginning to reevaluate the treatment of children in the adult criminal justice system, drawing from new insights and old intuitions about the developmental differences between children and adults. This welcome trend has only recently begun to translate into any systematic change to the practice of subjecting children to solitary confinement in adult jails or prisons, with significant reform in New York City at the leading edge.
Despite the beginnings of a trend, there have been few legal challenges to the solitary confinement of children and there is a consequent dearth of jurisprudence to guide advocates and attorneys seeking to protect children in adult facilities from its attendant harms through litigation – or policymakers seeking to prevent or eliminate unconstitutional conduct. This article helps bridge this significant gap. It contributes the first comprehensive account of the application of federal constitutional and statutory frameworks to the solitary confinement of children in adult jails and prisons, with reference to relevant international law as well as medical and correctional standards. In doing so, this article seeks to lay the groundwork for litigation promoting an end to this practice.
Controversial marijuana reform initiative loses big in Ohio
As reported in this local article, headlined "Ohioans reject legalizing marijuana," the controversial ballot initiative which sought to convince Ohio voters to go from blanket marijuana prohibition to full legalization is losing badly as the votes get counted tonight. Here are the basics:
Ohio voters strongly rejected legalizing marijuana today, despite a $25 miillion campaign by proponents. The Associated Press called State Issue 3 a loser about 9:30 p.m., 30 minutes after the first results were released by Ohio Secretary of State Jon Husted’s office.
The issue to legalize pot for recreational and medical use is going down 65 percent to 35 percent, losing in all 88 counties with more than 48 percent of the statewide vote counted.
“At a time when too many families are being torn apart by drug abuse, Ohioans said no to easy access to drugs and instead chose a path that helps strengthen our families and communities,” said Gov. John Kasich in a statement.
Curt Steiner, campaign director for Ohioans Against Marijuana Monopolies, said, “Issue 3 was nothing more and nothing less than a business plan to seize control of the recreational marijuana market in Ohio ... Never underestimate the wisdom of Ohio voters. They saw through the smokescreen of slick ads, fancy but deceptive mailings, phony claims about tax revenues and, of course, Buddie the marijuana mascot.”
However, State Issue 2 is passing 53 percent to 47 percent. Some counties voted against Issue 2, including Athens County. Issue 2 is an amendment proposed by state lawmakers to make it more difficult for special economic interests to amend the Ohio Constitution in the future.
From the very start of the initiative effort, I kept repeating my view that the framing of any marijuana reform proposal in Ohio would likely determine its fate. Specifically, I thought that if voters saw Issue 3 as a referendum on blanket marijuana prohibition, the issue would have a chance to prevail; if it was seens as a referendum on a corporate take-over of the marijuana movement, it was sure to lose. Based on the mainsteam and social and activist coverage, it seems many voters who might have supported ending prohibition were too turned off by the ResponsibleOhio model to vote yes on Issue 3.
Because it seems like Issue 3 is going down by a very significant margin, I suspect (and fear) that this result in bellwether Ohio will significantly energize both local and national opponents of marijuana reform. Indeed, here is the text of an email I already received from SAM, the leading anti-marijuana reform group:
We did it! Despite a flood of celebrity endorsements and being outspent 15 to 1, Ohio voters weren't fooled. Tonight, they defeated legalization by one of the widest margins of victory any marijuana measure has seen in decades.
This is huge! This proves that our movement is thriving -- and we have many more victories in front of us.
A heartfelt thanks to Ohioans Against Marijuana Monopolies, which our SAM Action Ohio affiliate was a big part of, for delivering this important victory tonight. It proved that legalization is not inevitable, and we will take every grain of knowledge we learned from this campaign into other states moving forward.
I will have lots more coverage and analysis of this notable Ohio result and its local and national implications at Marijuana Law, Policy and Reform in the days ahead.
"Death Penalty Opponents Split Over Taking Issue to Supreme Court"
The title of this post is the headline of this interesting new New York Times article by Adam Liptak. Here is how the piece gets started:
In the long legal struggle against the death penalty, the future has in some ways never looked brighter. In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.
But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.
“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.
But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.
The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion. Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.
American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big
As students in my various classes know well, I have been more than a bit obsessed over the controversial campaign seeking to bring dramatic marijuana reform to my home state of Ohio this year. My interest in this campaign is not only because I have a front-row seat on all the action and know a lot of the leader players, but also because (as hinted in the title of this post) I believe national marijuana prohibition throughout the United States will be functionally dead if a controversial marijuana legalization proposal can win in a swing state in an off-off-year election with nearly all the state's establishment politicians working overtime to defeat it.
Stated more simply, if a majority of Ohio voters today vote to repeal marijuana prohibition in the state, I think it becomes all but certain that national marijuana prohibition will be repealed before the end of this decade. These realities led me to start thinking about the famous lyrics of one of my all-time favorite songs, American Pie. So, at the risk of making light of a serious issue on a serious day, I will carry out these themes by doing a poor man's Weird Al Yankovic:
A long, long time agoI can still remember how that mary jane used to make me smileAnd I knew if Ohio had a chanceWe could make those politicians danceAnd maybe they'd be hoppy for a whileBut February made me shiverWith every complaint drug warriors deliveredBad news in the reform planI couldn't be sure who was the manI can't remember if I criedWhen I read about the monopolies triedBut something touched me deep insideThe day the marijuana prohibition died
So bye, bye, American Pot ProhibitionDrove my Prius to the pollsbut the polls gave me confusing choicesAnd them good ole boys were drinking whiskey 'n ryeSingin' this'll be the day prohibition diesThis'll be the day prohibition dies
Whatever my students and all other Ohioans think about these issue, I sincerely hope everyone goes out to vote so that we get a large and representative indication of what Buckeyes really think about thse matters.
November 3, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)
"The Bumpiness of Criminal Law"
The title of this post is the title of this notable paper by Adam Kolber now available via SSRN. Here is the abstract:
Criminal law frequently requires all-or-nothing determinations. A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.
Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs. An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output. By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects. Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements. While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.
Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans
This local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:
Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.
In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.
Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state. He noted that Texas could be a model for the types of reform that should be implemented here.
Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate. There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state. The prison system costs Louisiana nearly $350 million a year. It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.
“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday. He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.
He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate. He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot. “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.
Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”
Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population. He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”
"The Retroactivity Roadmap"
The title of this post is the title of this notable new essay by William Berry III available via SSRN. Here is the abstract:
In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment. Three years later, the question remains whether the holding in Miller applies retroactively. As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural. Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective. This term, the Court will take up that question in Montgomery v. Louisiana.
This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics. This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content. As a result, Miller should apply retroactively. Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges. Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.
Monday, November 2, 2015
Prez Obama takes criminal justice reform tour to New Jersey, but Gov Christie not pleased by visit
This Reuters article, headlined "Obama pitches help to ex-criminals, draws N.J. governor's ire," details notable talk from notable officials about criminal justice reform today in the Garden State. Here are the particulars:
President Barack Obama announced new measures to smooth the integration of former criminals into society but his visit to New Jersey on Monday irked the state's governor, a struggling Republican presidential candidate.
Obama, a Democrat who has made criminal justice reform a top priority of his final years in office, praised organizations in Newark for their efforts to help those who have served prison terms to reintegrate into civilian life. "We've got to make sure Americans who have paid their debt to society can earn their second chance," Obama said in a speech at Rutgers University in Newark, a city of about 280,000 that has grappled for decades with poverty and high rates of violent crime.
Obama said he was banning "the box" that applicants had to check about their criminal histories when applying for certain federal jobs. He praised companies such as Wal-Mart, Target, Koch Industries, and Home Depot for taking similar measures in the private sector. The president noted that Congress was considering similar measures.
But New Jersey Governor Chris Christie, who is failing to gain traction in his bid for the Republican Party's nomination to run for the White House in the November 2016 election, said Obama's policies had hurt police departments nationwide. "(Obama) does not support law enforcement. Simply doesn't. And he's going to come today to New Jersey in a place where, under my tenure, we have reduced crime 20 percent and reduced the prison population 10 percent," Christie said on MSNBC TV. "It's a disgrace that he's coming to New Jersey today to take credit for this stuff when he's been someone who's undercut it."
The new steps unveiled by the White House included up to $8 million in federal education grants over three years for former inmates as well as new guidance on the use of arrest records in determining eligibility for public and federally assisted housing....
White House spokesman Josh Earnest questioned the reasoning behind Christie's less friendly welcome on Monday. “Governor Christie’s comments in this regard have been particularly irresponsible, though not surprising for somebody whose poll numbers are closer to an asterisk than they are double digits. Clearly this is part of the strategy to turn that around,” Earnest said.
For more on the specific proposals annouced by President Obama today, this official White House Fact Sheet provides lots of details under the heading "President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly- Incarcerated."
Some analysis of the Prez's proposals can be found in this Atlantic piece with this lengthy headline: "Obama's Plan to Help Former Inmates Find Homes and Jobs: Between 40 and 60 percent of ex-offenders can’t find work. Will the president’s new initiative help?"
House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform
The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):
Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens. This action is not the result of legislation passed by the people’s elected representatives in Congress. Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.
In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences. The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses. Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.
The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety. Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.
There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget. However, the Sentencing Commission is going about sentencing reform the wrong way. Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.
The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues. If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly. Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....
Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.
That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible. It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences. These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.
Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people. Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early. This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....
While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.
The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety. Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.
That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population. Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget. The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding. Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.
November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Sentencing Reforms Need Voices From Victims: Amid the bipartisan effort to fix a broken criminal justice system, a key perspective is missing."
The title of this post is the full headline of this notable National Law Journal op-ed authored by Mary Leary. I recommend the piece in full, and here are excerpts:
The Senate Judiciary Committee last month advanced, on a bipartisan basis, the historic Sentencing Reform and Corrections Act of 2015. This act has been described as the most significant criminal justice reform in decades. It proposes to drastically alter the sentences of thousands of criminals, recalibrating the entire structure of our criminal justice system.
While the Judiciary Committee's recent move is good news for sentencing reform, the news about the process of this bill is more mixed. It is critical that different stakeholders with distinct perspectives weigh in on this landmark legislation before it is passed. Yet, guess how many crime victims organizations were called to testify before the Senate Judiciary Committee? Zero....
As evidenced by President Barack Obama's recent meetings with the Major Cities Chiefs of Police and the International Association of Chiefs of Police, some policymakers understand that, to achieve legitimacy, the reforms need to be more than "bipartisan." They must be a product of dialogue with all stakeholders, not just offenders' organizations.
Yet, apparently no one in the Senate thought it appropriate to hear what victims have to say about criminal justice reform. Last year, about 1.17 million violent crimes and nearly 8.3 million property crimes were reported to law enforcement. The victims of that criminal activity are the people who bear the direct and secondary harm.
That is not all. It is not just that victims were not included as witnesses; they were barely even mentioned. A review of the written testimony of all nine witnesses indicates that the word "victim" or any derivative thereof was used a mere nine times....
And if victim groups have concerns, would not the bill become stronger if they were considered and perhaps included in its drafting? Although prosecutorial figures did testify, it is a mistake to assume they speak for victims. Indeed, that is how it should be, as the prosecutor's role is to represent the entire community and do justice, not to act as a victim's personal attorney.
A functioning criminal justice system must have legitimacy and a reformed fair sentencing scheme advances that goal. But a criminal justice system loses some legitimacy if it does not hear the voice of a major stakeholder — the victims.
The president and Congress need to reach out to victims. The president has gone all the way to Oklahoma to meet with prisoners. Perhaps he should take a walk in Washington and meet with one of the victims of the over 40,000 crimes that occurred there in 2014 or speak to the families affected by a homicide rate that has increased over 47 percent since last year.
Similarly, in 2004, Congress passed the Crime Victims Rights Act. This act afforded victims the right to be "reasonably heard" at public court proceedings. This same Congress should recognize that right in this context and allow victims to be "reasonably heard" regarding this major legislation. Not only is it reasonable to listen to crime victims, but it is necessary for any criminal justice reform to be legitimate.
Looking forward to big CKI summit "Advancing Justice: An Agenda for Human Dignity and Public Safety"
Though the biggest crimnal law reform story I am following this week concerns Ohioians voting on a controversial marijuana reform initiative (recent coverage here), right after election day I will have the honor and privilege of attending another big criminal justice event. Specifically, Wednesday I am heading down to the Big Easy to attend a big summit on criminal justice and policing reform that the Charles Koch Institute will be hosting November 4-6.
This big event is titled "Advancing Justice: An Agenda for Human Dignity and Public Safety," and this list of speakers and this schedule of panels reveal what an amaazing gathering the event looks to be. This webpage provides this description of what the event is all about:
Criminal justice and policing reforms are gaining momentum with concrete gains at the state and federal level. However, there is much more that needs to be done.
The Charles Koch Institute is holding a summit to help identify the next set of priorities, and to support a broad coalition that can help address barriers to further progress. We want to bring together the leading figures in this movement: policy makers, academics, think tanks, community activists, non-profits, elected officials, religious groups, etc., and together propose real, meaningful, lasting solutions. We are committed to supporting the best ideas and lending our voice to the national conversation for an advancement in human dignity and greater public safety.
The Charles Koch Foundation is a proud supporter of the summit.
"Will the Roberts court abolish capital punishment?"
The question in the title of this post is the headline of this recent lengthy article in The Hill. Here are excerpts:
The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.
The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term. “There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”
Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory. The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections. While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”...
But even conservative Justice Antonin Scalia says it could happen. During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times....
The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.
President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment. The White House said Obama was “influenced” by the pope’s remarks in Washington. And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.” He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”...
Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support. The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008....
Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years. “It’s not something that is a new idea,” he said. “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”
Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states. “It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”
For now, the court has only agreed to hear questions on procedural aspects of death penalty cases. On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia. Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment. “Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”
All the sentencing news that's fit to print in New York Times
I am to very pleased to see that the two lead stories in today's national section of the New York Times are two criminal justice reform stories that are close to my heart. Here are the headlines and links:
In addition, inspired by the Supreme Court hearing this morning a capital case involving questionable jury selection, the New York Times also has this notable editorial and op-ed article on the topic:
Sunday, November 1, 2015
The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015
I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here). When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague. But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects. Let me explain my thinking here.
1. Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease. That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence. Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.
2. The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague. But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation. Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language.
3. Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years. Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA. If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate. (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)
4. The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):
The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases. To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.
5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)
I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough. And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds.
November 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)
"Bar None? Prisoners' Rights in the Modern Age"
The title of this post is the title of this notable paper by Daniel Medwed available via SSRN. Here is the abstract:
The American public is perhaps more sensitized to the flaws in our criminal justice system than at any time in our history. News accounts of wrongful convictions, racial profiling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation — upwards of 1.5 million people housed in state or federal prisons according to the Bureau of Justice Statistics. To some extent, this period of questioning and reflection has produced gains; we have witnessed a modest shift away from mandatory minimum sentencing and toward the decriminalization of some narcotics. Parole boards have shown a rising awareness that inmates’ claims of innocence should not be held against them in their release decisions. Even more, some states — most notably, Michigan — have formulated innovative re-entry programs to assist prisoners in making the perilous transition from their cell blocks to residential and commercial blocks in neighborhoods throughout the country. These events have prompted some observers to envision an end to mass incarceration in the United States.
Yet this vision is a mirage. Despite all of the talk about criminal justice reform and “decarceration,” we still live in a country where large swaths of people, especially young men of color, languish behind bars or under the restrictions of probation, parole, or some other form of community supervision. This is likely to remain the case absent dramatic changes to policing practices, wealth inequalities, and the lobbying tactics of corrections officials and affiliated industries. The danger with the decarceration rhetoric is that it deflects attention from those who continue to suffer under horrid conditions of confinement. Indeed, this Symposium explores the contemporary prison experience against this complicated backdrop and asks a fundamental question: what are the gravest problems that inmates face during an era in which many people might naively think that the situation has improved?
SCOTUS back in action with week full of criminal law arguments
The US Supreme Court Justices return from a few weeks traipsing around the country (see SCOTUSblog mapping) to hear oral arguments this week in six cases, four of which involve criminal law issues. Drawing from this SCOTUSblog post by Rory Little, here are summaries of the criminal cases the Court will consider this week:
Monday, Nov. 2
Foster v. Chapman: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky when state prosecutors struck all four prospective black jurors, offering “race-neutral” reasons, and it was later discovered that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) circled the word “BLACK” on the questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.” (Georgia Supreme Court)
Tuesday, Nov. 3
Lockhart v. United States: Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)
Torres v. Lynch: Whether, for immigration removal purposes, a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. (Second Circuit)
Wednesday, Nov. 4
Bruce v. Samuels: Whether the twenty-percent-of-income “cap” in the Prison Litigation Reform Act (28 U.S.C. § 1915(b)(2)), requiring in forma pauperis prisoners to still pay something toward the fee for filing federal cases, applies on a “per case” or “for all cases” basis. (D.C. Circuit)
"In Heroin Crisis, White Families Seek Gentler War on Drugs"
The title of this post is the headline of this notable lengthy New York Times article which astutely highlights how the demographics of who suffers most from a drug war can impact just how that war will be fought. Here are excerpts from the piece:
The growing army of families of those lost to heroin — many of them in the suburbs and small towns — are now using their influence, anger and grief to cushion the country’s approach to drugs, from altering the language around addiction to prodding government to treat it not as a crime, but as a disease.
“Because the demographic of people affected are more white, more middle class, these are parents who are empowered,” said Michael Botticelli, director of the White House Office of National Drug Control Policy, better known as the nation’s drug czar. “They know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” Mr. Botticelli, a recovering alcoholic who has been sober for 26 years, speaks to some of these parents regularly.
Their efforts also include lobbying statehouses, holding rallies and starting nonprofit organizations, making these mothers and fathers part of a growing backlash against the harsh tactics of traditional drug enforcement. These days, in rare bipartisan or even nonpartisan agreement, punishment is out and compassion is in.
The presidential candidates of both parties are now talking about the drug epidemic, with Hillary Rodham Clinton hosting forums on the issue as Jeb Bush and Carly Fiorina tell their own stories of loss while calling for more care and empathy.
Last week, President Obama traveled to West Virginia, a mostly white state with high levels of overdoses, to discuss his $133 million proposal to expand access for drug treatment and prevention programs. The Justice Department is also preparing to release roughly 6,000 inmates from federal prisons as part of an effort to roll back the severe penalties issued to nonviolent drug dealers in decades past.
And in one of the most striking shifts in this new era, some local police departments have stopped punishing many heroin users. In Gloucester, Mass., those who walk into the police station and ask for help, even if they are carrying drugs or needles, are no longer arrested. Instead, they are diverted to treatment, despite questions about the police departments’ unilateral authority to do so. It is an approach being replicated by three dozen other police departments around the country.
“How these policies evolve in the first place, and the connection with race, seems very stark,” said Marc Mauer, executive director of the Sentencing Project, which examines racial issues in the criminal justice system. Still, he and other experts said, a broad consensus seems to be emerging: The drug problem will not be solved by arrests alone, but rather by treatment....
Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African-Americans for a more empathetic approach were largely ignored. “This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools. “But,” she added, “one cannot help notice that had this compassion existed for African-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”
Saturday, October 31, 2015
Might California get two completing capital punishment propositions to consider in 2016?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:
A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals. The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California. The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.
A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment. Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.
Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years. San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.
Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement. The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.
Friday's news conference came a few days before the state plans to release a revised method of execution. The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006. A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....
The measure announced Friday is similar to one that death penalty supporters launched more than a year ago. The earlier proposal did not get enough signatures to qualify for the ballot. A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.
Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment. Death row inmates would be housed throughout the prison system.
The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000.
Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.
But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”
As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)
"Is Halloween Really More Dangerous for Kids?: A lack of evidence doesn’t stop cities from rounding up sexual offenders on the holiday."
The title of this post is the headline of this recent Marshall Project piece that seems fitting to spotlight on October 31. Here is an excerpt (with links from the original):
Despite research showing no evidence that children are at greater risk of experiencing sex abuse on Halloween than on any other day, states and localities around the country impose severe restrictions on registered sex offenders during the holiday.
Some, including parts of Virginia, Georgia, Delaware and Texas, require sex offenders on probation or parole report to designated locations. O thers, such as Missouri, Florida and Nevada, direct some offenders to post signs on their doors that say, “No candy or treats at this residence.” Broader restrictions in most states direct people on the registry to keep their lights off to deter trick-or-treaters and stay away from children in costumes in their neighborhood or at the local mall.
Before a 2014 ACLU complaint, the Plaquemines Parish Sheriffs Office in Louisiana required all registered sex offenders post this sign on their front lawn on Halloween.
For more than six years, the Gaston County Sheriff’s Department in North Carolina has ordered sex offenders who are still on parole to report to the courthouse on Halloween, said Capt. Mike Radford, who helps to oversee the program. “We keep them in one big courtroom and call people in and out to do random drug testing and vehicle searches, and we have guest speakers,” he said. “If they don’t show up, we pick them up and arrest them.” Radford said he doesn’t know why the program began but believes it is because Halloween presents “easy accessibility to a minor.”
The laws began to proliferate nationwide in the 1990s, when the fear of a predator who lures young children into his home with candy arose amid other concerns, such as poisoned treats and razor blades in apples. “Going back decades, there is this sense that there are these dangers to children on Halloween,” said Jill Levenson, a clinical social worker and associate professor at Barry University in Florida.
But studies have shown that more than 90 percent of children who are sexually abused know their abuser, who is often a family member or close acquaintance. A Bureau of Justice Statistics report showed that only 7 percent of those who sexually abused juveniles were strangers to their victims.
Levenson co-authored a study that examined the Halloween effect by looking at sex crimes against children between 1997 to 2005. The researchers analyzed more than 67,000 crimes in which the perpetrators were strangers, acquaintances, and neighbors.
In a year-by-year comparison that zeroed in on Halloween, the researchers found no variation in number or types of crimes committed, even as more laws were added. But that’s not the message families hear in the weeks before Oct. 31, when articles with headlines such as “Homes to Watch Out for This Halloween,”which run the addresses of local registered sex offenders, are common.
Friday, October 30, 2015
SCOTUS grants cert on quirky aspect of federal gun prohibition case
As reported in this SCOTUSblog post, headlined "Court grants review in firearm-possession case," the Supreme Court decided today to take up a federal criminal case involving gun rights. But, interestingly, as Amy Howe explains in the post, the Court did not accept for review the Second Amendment issue lurking in the case:
This afternoon the Court issued an initial group of orders from its October 30 Conference, adding one new case to its merits docket for the Term. The Justices had considered Voisine v. United States at two earlier Conferences before granting review today.
At issue are the convictions of two Maine men, Stephen Voisine and William Armstrong, for violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Both men allege that their convictions under Maine law for simple assault and misdemeanor domestic violence assault, respectively, do not automatically qualify as misdemeanor crimes of domestic violence for purposes of the federal law, 18 U.S.C. § 922(g)(9), because both provisions of Maine law can be violated by conduct that is merely reckless, rather than intentional. The U.S. Court of Appeals for the First Circuit rejected that argument, and the federal government urged the Court to deny review, but the Justices today disregarded that recommendation.
Notably, however, the Court agreed to review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment.
"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"
The title of this post is the title of this intriguing new paper authored by Robert M. Sanger and available via Bepress. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores. Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences
Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007. Here are a few posts from eight years ago on this blog on that topic:
- A retroactive litmus test on leading Democratic candidates
- Seeking to clear up Clintonian confusion on crack retroactivity
- More questions about Clinton's opposition to crack guideline retroactivity
- Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
- Exposing the (racist?) hypocrisy of Clintonian speeches without solutions
I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:
Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.
A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.
Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....
Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....
On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.
A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.
The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.
The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.
As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.
October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)
Florida finally completes execution three decades after triple murderer sentenced to death (nonunanimously)
As reported in this local article, headlined "Orlando man on death row executed for 1985 murders," Florida carried out a notable death sentence last night. Here are the basics, which highlight that the case involved issues that the Supreme Court has taken up in recent years:
Though it took 30 years for Jerry Correll to receive his death sentence, the process to kill him took 10 minutes. Correll, one of Orange County's most notorious killers, was pronounced dead at 7:36 p.m. Thursday at Florida State Prison after receiving a lethal injection that included the controversial sedative midazolam.
About two dozen witnesses watched as the 59-year-old Orlando man lay on a gurney covered with a white sheet from the neck down, his hands covered in bandages, his wrists strapped down and IVs in his arms. When the curtain surrounding him rose, Correll looked to his right and mouthed the words, "Thank you," to a man wearing a cross in the front row. Asked whether he wanted to say any last words, Correll responded to the leader of the execution team, "No, sir."
Correll had been on death row for three decades after stabbing to death his ex-wife, Susan; their 5-year-old daughter, Tuesday; and Susan's mother and sister in 1985. Police and prosecutors described the murders at the Conway-area home as among the most bloody and gory they had ever seen....
The victims' family members released a statement saying they were "at peace in knowing justice had finally been served." "Jerry Correll chose to take the lives of four beautiful, innocent people on June 30, 1985," the statement said. "People who are still loved and missed by their family and friends 30 years later. The consequences of those actions should be no less than death itself."...
The execution was the first in the nation since a U.S. Supreme Court ruling in June that allowed the use of midazolam, a sedative that is part of the three-drug protocol used in Florida executions.... Correll becomes the second inmate executed in Florida this year and the 91st since 1979, according to the Death Penalty Information Center.
A U.S. Supreme Court case regarding whether all death-penalty decisions should require a unanimous jury verdict in sentencing death ... is pending.... A jury of 10 women and two men, selected in Sarasota because of the publicity locally, convicted Correll of four counts of first-degree murder after a weeklong trial. Jurors voted 10-2 that he should die.
Thursday, October 29, 2015
More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms
Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:
These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system. About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders. In short, we need to make sure that the punishment fits the crime. Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.
And I know how badly we need reform. As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system. I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.
We need a new approach and we need a better approach. We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....
We need to think differently. We need to look beyond our own experiences and accept that there may be new and better, ways of doing things. I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs. Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities. While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.
This new way of thinking is beginning to resonate in federal and state systems all across the country. At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes. The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead. Twenty-nine red states and blue states across the country have passed innovative reforms. Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.
But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty. We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs. We all know that we can’t simply jail our way into safer communities. But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.
When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention. The fact is, more than 95 percent of all prisoners will eventually be released from prison. And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years. We have to break that cycle.
We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past. They need jobs and homes; friends and family. Yet so many people in our society want nothing to do with anyone with a rap sheet. There are too many people willing to pin a scarlet letter on those who have spent time in prison. The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.
It is up to all of us to reject this way of thinking. Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....
Achieving meaningful criminal justice reform will not be easy. And we must all participate in this process, government and private citizens alike. Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change. It’s time that we collectively discard old assumptions and embrace new ideas. In other words, it’s time we all collectively put two fingers to our temples. Our nation and our fellow citizens deserve nothing less.
Final reminder about "Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"
As noted in this post last week, some of my students at The Ohio State University Moritz College of Law have put together a terrific event for tomorrow afternoon (Friday, October 30) to discuss what next week's vote on an Ohio marijuana initiative might mean for both the politics and policy of marijuana reform. This link leads to even details and registration for this (free) event, and there you can also find this summary description:
National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.
Participants will include Professors Douglas Berman and Dan Tokaji from The Ohio State University Moritz College of Law, as well as John Hudak and Philip Wallach from the Brookings Institute.
Why this event is so timely and exciting can be readily understood just from these four most recent posts from my Marijuana Law, Policy & Reform blog:
- Highting how Ohio initiative has deeply split traditional marijuana reform groups
- Has candidate Bernie Sanders already produced "big political moment" for marijuana reform?
- Unsurprisingly, MPP and SAM have very different marijuana grades for Prez candidates
- Spotlighting how, in bellwether Ohio, "Corporations, Activists Clash Over Legal Pot"
"Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionaltiy Seriously and Implementing Fair Fixed Penalties"
The title of this post is the title of this notable new paper authored by Mirko Bagaric and Sandeep Gopalan now available via SSRN. Here is the abstract:
Unabated tough-on-crime policies in the United States for the past two decades in response to a crime problem have now produced another crisis: too many prisoners. Prison gates are currently literally being opened to release prisoners in a bid to ameliorate the unsustainable cost of detaining more than two million Americans. More than 40,000 drug offenders may be released early from prison pursuant to retrospective sentence reductions which have been implemented for no greater reason than the prison walls are crumbling from overuse. Sentencing is the sharp end of the criminal law. It is the domain where the State acts in its most coercive manner against citizens. The cardinal interests at stake are too important for it to continue to be dictated by reflexive legislative hunches. Yet, it is the area of law where there is the biggest gap between what is implemented and what theory informs us is achievable.
This Article attempts to correct that failing and in the process makes concrete proposals to prevent the United States making another macro-political and social error by over-reacting to the present crisis. Mandatory harsh penalties have caused the incarceration crisis. The solution to the problem involves maintaining the overarching architecture of this approach but fundamentally alerting its content. The core problem with the current approach to sentencing in United States is not its prescriptive nature. It is that the sanctions are generally too severe; devoid of any attempt to match the gravity of the crime to the harshness of the penalty. Proportionality is the missing component in United States sentencing. Drug traffickers, for example, deserve punishment, but any system that treats them as severely as murderers is afflicted with a fundamental doctrinal deformity.
This Article proposes a model to remedy such flaws. It gives meaning and content to proportionality. As a result, it is suggested that most non-violent and non-sexual offenses should be dealt with less harshly. This is especially because the cost and burden of imprisonment to the community needs to be factored into the sentencing calculus. Moreover, prison should be principally reserved for offenders who are a threat to public safety; not those whom we simply dislike. This will result in a rapid emptying of many prisons, but it will be principled -- not reflexive. To illustrate the manner in which our recommendations should operate we develop a sentencing grid which, if implemented, would make United States sentencing fair, efficient and profoundly less expensive to the taxpayer.
US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
I have been remiss for failing to highlight in this space the notable analysis recently done by the US Sentencing Commission in conjunction with the Senate's work on the Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here). That analysis appears in full form in this extended statement by USSC Chair Patti Saris to the Senate Judiciary Committee, and it appears in summary form in this USSC news release praising the Committee's passage of SRCA 2015 through to the full Senate. Here are the key data appearing in short form in the press release:
According to the Commission’s analysis, key provisions of S. 2123 would:
• Provide retroactive application of the Fair Sentencing Act (FSA), which could allow 5,826 offenders currently in prison to receive an approximate 20 percent reduction in sentence.
• Permit certain offenders who are currently subject to the 10-year mandatory minimum penalty to be subject to the 5-year mandatory minimum instead, which would reduce the sentence of 550 offenders annually by approximately 19.3 percent.
• Broaden the safety valve to provide greater relief to more low-level, non-violent offenders, which would reduce the sentence of 3,314 offenders annually by nearly 20 percent and save 1,593 federal prison beds within 5 years of enactment.
• Reduce mandatory minimum penalties for recidivist drug offenders with prior drug felony convictions from 20 years to 15 years, and reducing the mandatory life imprisonment penalty for certain offenders to 25 years while both narrowing and expanding the types of prior offenses that could trigger a mandatory minimum.
• Reduce the mandatory minimum sentencing enhancement for using a firearm in the commission of a violent crime or drug offense from 25 years to 15 years, and narrow the circumstances in which multiple sentencing enhancements apply, which would reduce the sentence of 62 offenders annually by 30.4 percent.
• Reduces the mandatory minimum penalty under the Armed Career Criminal Act from 15 to 10 years, which would reduce the sentence of 277 offenders each year by approximately 21.6 percent. The bill would apply this provision retroactively, which, if granted, could result in a sentence reduction for 2,317 offender currently in federal prison.
Recent prior related posts on SRCA 2015:
- Bipartisan federal sentencing reform bill due to emerge from Senate today
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- Noting the potential sentencing reform benefit from the latest budget deal
October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
NY Times debates "Will Crime Rise If More People Are Kept Out of Prison?"
The Room for Debate section of the New York Times has this new set of pieces exploring the potential crime impact of reduced use of incarceration. Here is the section's set up (with links from the source):
Even many of the nation’s police chiefs have called for reducing the number of people, particularly minorities, sent to prison. But the news that a man suspected of murdering a New York City police officer had been given break after break, and was free because he had been allowed to enter a diversion program rather than be jailed on drug charges, have led even supporters of such programs to raise questions about them.
With some already saying that crime may be rising, are we moving too fast to embrace limits on incarceration, such as diversion programs and drug courts? Could such measures actually increase the risk of crime?
Here are the contributions, with links via the commentary titles:
"Safety and Justice Complement Each Other" by Glenn E. Martin,
"Prison Alternatives Have Been Tried and Found Wanting" by Heather MacDonald
"Don’t Let a Hero’s Death End a Vital Program" by P. David Soares
"Incarceration Helped Bring Crime Down" by Michael Rushford
"Mass Incarceration Is a Horrible Failure" by Allegra M. McLeod
Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?
The question in this post is prompted by this lengthy new Politico article headlined "Hastert's sweet deal: Lawyers question whether federal prosecutors are following guidelines." Here are excerpts:
House Speaker Dennis Hastert’s guilty plea in a hush-money case has some lawyers asking whether the former speaker is getting a sweetheart deal.
At a court hearing in Chicago Wednesday, the prosecution and defense unveiled Hastert’s plea bargain under which he admitted to a felony charge of structuring $952,000 into 106 separate bank withdrawals to avoid federal reporting requirements. The two sides agreed that sentencing guidelines call for Hastert to receive between zero and six months in jail.
But legal experts say those guidelines arguably call for a much longer sentence—closer to two to three years or more, including a potential enhancement for obstruction of justice. And some lawyers say they’re baffled that prosecutors would buy into a calculation that opens the door to Hastert getting a sentence of probation. “It seems like a sweet deal,” University of Richmond law professor Carl Tobias said. “It’s just hard to understand.”
The indictment in the case also charged Hastert with lying to the FBI about what he did with the money, concealing that he paid it to a longtime associate in an effort to hide past misconduct. In the plea deal, Hastert admitted to misleading the FBI, but prosecutors agreed to drop the false statement charge....
The agreement between prosecutors and Hastert’s defense that the zero-to-six-month sentencing range is applicable to his case is not the end of the matter. A probation officer will also calculate the range and could disagree with the parties. Durkin will ultimately decide what the guidelines call for. Under the plea deal, Hastert retains the right to appeal the sentence to the 7th Circuit.
Under a 2005 Supreme Court decision, the judge is required to consult the guidelines but he can impose a more or less severe sentence. Experts in structuring cases say judges often sentence below the guidelines, especially in so-called “clean money” cases where the government does not allege that the funds were the product of illegal activity like drug dealing or were being used to avoid taxes.
"The sentencing guidelines for clean-source money cases are totally out of whack," the ex-prosecutor said. "It's insane to sentence someone for a purely regulatory violation as severely if not more severely than someone who defrauded someone out of $952,000. Having said that, there are a good measure of bad acts here, so maybe there would be some rough justice in it."
Prosecutors have alleged that Hastert paid the $952,000 in illegally structured withdrawals to a longtime associate because of Hastert’s past misconduct against that person, identified in court filings only as “Individual A.” Sources have alleged the behavior involved sexual contact with a male student while Hastert was a coach and high school teacher several decades ago, but the indictment does not mention any sexual aspect to the charges.
Experts say Hastert could not be charged or sued today over such acts years ago because the relevant statutes of limitations have expired. Lawyers say a key factor in Hastert's ultimate sentence could be whether Durkin decides Hastert's underlying misconduct is relevant for the purpose of sentencing on the bank reporting charge.
Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.
"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."
October 29, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)
States find (unsurprisingly) that civil commitment for sex offenders not a simple solution
This lengthy New York Times article, headlined "States Struggle With What to Do With Sex Offenders After Prison," documents some of the difficulties states have had with sex offender civil commitment programs. Here are excerpts:
Minnesota’s civil commitment program — which detains more people per capita than any other state — is facing an overhaul. Earlier this year, a federal judge found it unconstitutional, calling it “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” The judge, Donovan W. Frank, of Federal District Court in St. Paul, is expected to order changes to the program as soon as this week.
Minnesota is not alone in revisiting its policies. In Missouri, a federal judge last month found that state’s program violated people’s right to due process, potentially imposing “lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.” Of about 250 people held since Missouri began committing people in 1999, state officials say seven have been granted what the state considers release with courtordered restrictions, though some of those men remain in a group-home-like setting behind razor wire at a state facility.
In Texas, which previously had a unique outpatient method for treating sex offenders civilly committed after their prison sentences, the Republican-dominated State Legislature this year revamped the program after a Houston Chronicle investigation found that none of the hundreds committed to the program had ever graduated from it. The investigation also found that nearly half of the men detained for treatment while living in halfway houses and other facilities were actually sent back to prison for breaking the program’s rules.
“My sense was that we had to make changes or a federal court is going to strike down the whole program, and we need this program — some of these people would scare the hell out of you,” said State Senator John Whitmire, a Democrat who helped push through the overhaul, which included opening a former prison in remote Littlefield to house the detainees. “The way it was, it just looked like incarceration with double jeopardy,” Mr. Whitmire said. “This at least holds out a pathway to graduate.”
Civil commitment gained support in the 1990s amid reports of heinous sex crimes by repeat offenders. Today, 20 states, along with the federal government, detain some sex criminals for treatment beyond their prison time. But not all have been as sharply criticized as Minnesota’s program. In Wisconsin, 118 offenders have been fully discharged from commitment since 1994, and about 135 people have been given supervised release, according to Judge Frank. New York had sent home 30 people and moved 64 people out of secure facilities for the civilly committed and into strict supervision and treatment, Judge Frank wrote.
But the picture in Minnesota looks far different. Since the current program was created in the mid-1990s, civil commitments have soared. The abduction, rape and murder in 2003 of Dru Sjodin, a North Dakota college student, by a sex offender who had been released six months earlier enraged residents and set off a wave of efforts by county attorneys to call on judges to hold such offenders after their prison terms. Minnesota now has the highest population of civilly committed offenders per capita — nearly all men — in the nation, Judge Frank found, and the lowest rate of release. And costs have soared — to about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota, the judge said.
Yet even in a state that is often seen as liberal-leaning, changing the policy is politically fraught. Gov. Mark Dayton, a Democrat, faced intense criticism before his last election over whether to release from commitment — with strict conditions — a serial rapist who had admitted attacking at least 60 women. And proposals aimed at paying for regular risk evaluations for committed people, as well as other changes, have stalled in the State Legislature. “It’s really a stalemate now because the House Republicans have made it clear that anybody who supports any kind of step forward is going to be castigated in the 2016 elections,” Mr. Dayton said.