Thursday, March 19, 2015
"Beyond the Right to Counsel: Increasing Notice of Collateral Consequences"
The title of this post is the title of this new paper available via SSRN authored by Brian M. Murray. Here is the abstract:
In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities. In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel. These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction.
This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel. It argues that because the criminal justice system is primarily one of pleas rather than trials, alternative solutions that involve active participation by other actors involved in the plea process are necessary. Judicial participation in the notice process, informed by the guarantees of the Fifth Amendment, should be from beginning to end, starting with arraignment and ending with the guilty plea colloquy presented to the court. This solution comports with the spirit of Missouri v. Frye and Padilla v. Kentucky, which recognize the significance of notice as essential to combating the root of the problem, albeit in the Sixth Amendment context. Likewise, prosecutors must become more mindful of the how convictions affect individuals and should contribute to improving awareness through disclosure obligations at the time of a plea offer. These efforts will cumulatively heighten legal literacy over time – amongst all players within the system – and allow for an equitable distribution of burdens when addressing this issue.
Florida Supreme Court decides unanimously that Miller applies retroactively to all mandatory juve LWOP sentences
As reported in this local piece, the "Florida Supreme Court unanimously ruled Thursday that all of the state’s juvenile killers who received automatic sentences of life in prison must be resentenced under a law passed in 2014." Here is more:
The long-awaited ruling answers the question of whether the U.S. Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juvenile killers, applies retroactively. An estimated 250 state prisoners, 17 of them from Lee and Collier counties, are serving life sentences for murders committed before they turned 18.
Under Florida’s 2014 law, passed to conform with the U.S. Supreme Court decision, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder.
Since the state’s law was passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should also receive the same consideration. After the state’s five appeals courts gave conflicting opinions, the Florida Supreme Court weighed in Thursday.
The seven justices found that the U.S. Supreme Court’s ban “constitutes a development of fundamental significance,” the standard used to determine whether changes to Florida law apply retroactively. “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the (U.S.) Supreme Court’s decision in Miller retroactively,” Justice Barbara J. Pariente wrote in the opinion....
Under Florida’s new law, juveniles can still receive life behind bars. That sentence, however, must be made after a judge considers several factors, including the juvenile’s personal background, maturity and criminal history. At a minimum, a juvenile convicted of first-degree murder who committed the homicide must receive 40 years in prison.
The full ruling in Falcon v. Florida, No. SC13-865 (Fla. March 19, 2015), is available at this link.
Making the effective case for graduated reentry to reduce incarceration and recidivism
This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:
While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.
The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.
This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.
Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....
For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.
Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....
There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.
Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.
March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack (0)
Effective review of the import and impact of new reentry certificates for former offenders
The Marshall Project has this interesting new piece of original reporting on an important new component of reentry effort. The piece is headlined "Forgiving vs. Forgetting: For offenders seeking a new life, a new redemption tool," and here is an excerpt:
[T]he granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability.
“These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates — available in that state since 2011 — more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”
“That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.”
Paul Biebel, the presiding judge for Chicago's criminal court, agrees that the certificates are a promising new option. "Only over the last few years have we seen more of these coming through the court," he says of the certificates, "but I feel very strongly that they are an additional tool in a judge's toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people."
Wednesday, March 18, 2015
Does the new Coalition for Public Safety really have "political oopmh" needed to "fix justice in America"?
The question in the title of this post is prompted by this new Politico magazine commentary authored by Laura Arnold and John Arnold. The Arnolds are the co-founders of the new Coalition for Public Safety, and their commentary is titled "Fixing Justice in America: Here’s why our new left-right coalition has the political oomph to do it." Here are excerpts:
Not every policy debate has to be a fight, even in Washington. Some problems have solutions that Democrats, Republicans and everyone in between can wholeheartedly support. One such example is criminal justice reform. There’s an emerging bipartisan consensus, both in Washington and in the states, that we must reform a system where there is too little justice, too much cost and too many needlessly ruined lives. But getting from general agreement to action requires a concerted effort to change minds and change policy. That’s why we recently helped launch the Coalition for Public Safety, an unprecedented national bipartisan coalition of funders and advocacy partners that will work for smart, fair and just criminal justice reform.
The coalition will work at the local, state and federal level to fix the flawed policies that have conspired to create this problem. The coalition plans a multimillion-dollar campaign in connection with emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and address critical structural flaws in our system.
We’re odd bedfellows, but that’s what can make the Coalition such a powerful force. The Coalition will be funded by us, Koch Industries, the Ford Foundation and the John D. and Catherine T. MacArthur Foundation. It will also include partners ranging from the ACLU and the Center for American Progress on the left to FreedomWorks and Americans for Tax Reform on the right. If a group this diverse, with disagreements in so many other areas, can coalesce around criminal justice reform, then there is no reason our political leaders can’t do the same.
Criminal justice reform is a passion of ours and a priority of our Foundation. We work to attack the root causes of pressing social problems, and America’s dysfunctional criminal justice system is at the root of a number of issues. It contributes to poverty, broken families and broken budgets. And like many dysfunctional systems, our criminal justice system has been sustained by a mix of inertia, structural inefficiencies and vested interests that are resistant to change. But the creation of this Coalition is yet another promising sign that the tide is turning in favor of reformers....
Americans should be just as alarmed about the mundane, day-to-day realities of how criminal justice is administered. America imprisons a higher percentage of our citizens than any nation in the world and the numbers are not even close, as our incarceration rate is an indefensible ten times or more that of many other developed countries. And of the over two million people incarcerated in the United States, over 60 percent are imprisoned for nonviolent offenses such as drug possession.
Every citizen is paying a heavy price to support this bloated and ineffective correctional system, which costs taxpayers $80 billion per year. The costs are particularly acute for state governments (86 percent of all prisoners are in state facilities), where spending on incarceration is growing faster than spending on almost everything else including education and transportation.
Some might conclude that the price of mass incarceration is worth paying if it significantly reduces crime by keeping criminals off the street. But it does not. Although the rate of violent crimes in our country has been cut roughly in half since 1990, a number of studies have determined that America’s recent jailing binge had little to do with it. Simply put, we’re pouring tens of billions of dollars into a criminal justice system that doesn’t work at the expense of the crucial public services that our communities need.
The Coalition has two key virtues that no single organization has on its own. The first is critical mass, as it will be well-funded and well-resourced with experienced partners who have fought and won contentious political battles at every level of government. In the months ahead, the Coalition will educate and advocate for federal, state, and local reforms that can reduce our jail and prison populations and associated costs; end the systemic problem of over-criminalization; ensure swift and fair outcomes for both the accused and the victims; and reduce recidivism by breaking down barriers faced by those returning home after detention or incarceration.
The second virtue of the Coalition is the support it can provide political leaders who want to tackle these issues. It’s much harder for criminal justice reform opponents to dismiss a politician as a tool of the left or the right when leading voices on the left and right are in agreement that the politician is doing the right thing. The time is ripe for action. Many states and localities have recently passed ambitious reforms. There are several bipartisan criminal justice bills pending in the House and Senate. And in his State of the Union address earlier this year, President Obama called for bipartisan criminal justice reform in Congress.
It’s time to stop wasting money and ruining lives. It’s time for both parties to come together to build a criminal justice system that is smart, fair and just.
Death penalty symbolism and Robert Durst
Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:
- From NPR: "Robert Durst Charged With Murder, May Face Death Penalty"
- From Reuters: "Satisfaction over prospect of accused US killer Durst facing justice"
Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.
I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.
Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?
The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:
Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.
Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.
Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.
"Law & Tactics for a Market-Reality Narcotics Policy"
The title of this post is the title of this notable new article by Mark William Osler now available via SSRN. Here is the abstract:
The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed. However, drug use continues to be a profound social problem that must be confronted.
This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks. Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs.
This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.
March 18, 2015 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack (0)
Tuesday, March 17, 2015
Notable empirical review of what happens to most death sentences
This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:
If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts. In fact, the most common circumstance is that the death sentence will be overturned....
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
- 8,466 death sentences were imposed across the United States from 1973 through 2013.
- 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
- 2,979 remain on death row as of Dec. 31, 2013.
- 1,359 were executed.
- 509 died on death row from suicide or natural causes.
- 392 had their sentence commuted by the governor to life in prison.
- 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....
In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....
The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.
I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.
In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013. Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period. Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.
Sparring over sentencing reform lingo involving the media and Senator Grassley
Via this recent Washington Post piece, I see that Senator Charles Grassley last week delivered this notable floor speech assailing the Smarter Sentencing Act. Notably, the Post piece, headlined "The Orwellian deception of Chuck Grassley’s 'leniency industrial complex'," attacks some language in Senator Grassley's speech, a speech which itself attacks some language used by advocates of sentencing reform. Here are excerpts from the Post piece:
In a strongly-worded floor speech on Tuesday, Senate Judiciary Chairman Chuck Grassley (R-Ia.) blasted the Smarter Sentencing Act, which is currently before his committee. Grassley accused the bill's bipartisan supporters, including fellow Republicans Ted Cruz, Mike Lee and Rand Paul, of being part of a so-called "leniency industrial complex," a rather colorful turn of phrase. In the past, he's defined this as "some people in Congress, the public, academia, and the media, who think that sentences that are being imposed on serious criminal offenders are too stringent." Notice, though, the complete lack of "industry" in Grassley's "industrial complex."
The Smarter Sentencing Act is a fairly modest bill that does not in any way repeal mandatory minimum sentences. But it does reduce some of them, and it gives federal judges more discretion in how to apply them, particularly ones that apply to nonviolent drug offenders.
That small step toward reform is evidently a bridge too far for Grassley. He opened his speech with a litany of the dangers and harmful effects of the narcotics trade -- that heroin use is on the rise, that some terrorist groups profit from the drug trade, etc. These facts are hardly in dispute.
The problem is that Grassley believes, contrary to a mountain of evidence, that mandatory minimum sentences are effective tools for combating these problems.... Perhaps the most damning case against mandatory minimum drug sentences is that since they were instituted in the 80s and 90s, the use of illicit drugs has risen and their price has fallen dramatically....
Grassley accuses supporters of the bill of being "Orwellian" in their rhetoric. In his essay Politics and the English Language, Orwell wrote that "political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness." There may be no finer example of this than Grassley's use of the term "leniency industrial complex," which would seem to imply the existence of a powerful corporate network that would profit, somehow, from keeping people out of jail....
The only thing Orwellian about the debate over the Smarter Sentencing Act is Grassley's continued insistence that it would cost money, promote crime and benefit an unnamed "industrial complex" -- when in fact it would do the exact opposite.
I share the view that it is silly to speak of a "leniency industrial complex," and there are lots of other linguistic flourishes in Senator Grassley's floor speech that could be extensively picked apart for rhetorical excess and inaccuracy. But, but the same measure, I understand Senator Grassley's expressed concern with terms like "low-level" and "non-violent" (echoing points previously made here by Bill Otis) because use of these terms in sentencing reform debates are "question-begging" and do involve "sheer cloudy vagueness." Though I may myself be sometimes guilty of using or repeating these terms, I think a term like "less serious" is a better term that "low-level" (though still vague). And what can and should qualify as violent or non-violent crime has been such a problem in federal law that the US Sentencing Commission has given up trying to fix this matter and the US Supreme Court might soon blow up a statute for its vagueness in this arena.
Semantic debates aside, the Senator Grassley speech appears most significant for its apparent indication that the mandatory minimum drug sentencing reforms in the Smarter Sentencing Act will not be going anywhere while he is in charge of the Senate Judiciary Committee. I hope this does not mean all federal sentencing reform is dead, but it does suggest any significant reforms are going to be a long, hard slog. On a more positive note for would-be reformers, Senator Grassley's latest floor speech indicates that he recognizes "[p]roblems do exist in the criminal justice system," including that "for too many times in America, equality under the law is not a reality [because] the poor do not receive the same justice in many instances." Perhaps if sentencing reformers can start to emphasize economic inequalities regarding who gets slammed with the toughest sentences, maybe this key Senator will be more open to hearing ideas for reform
Monday, March 16, 2015
Massachusetts Chief Justice taking on prosecutors concerning drug mandatory minimums
This lengthy local article, headlined "Chief justice: Prosecutors “hold the cards” on sentencing," spotlights a war of words in the Bay State over the impact and import of mandatory minimums for drug offenses. Here are excerpts:
The chief justice of the state’s highest court lashed into the mandatory minimum sentencing of drug offenders on Monday, saying the current set-up needs to be abolished because it is “unfair” to minorities, fails to address the drug epidemic and is a “poor investment” of public funds.
In a sharp rejoinder, Boston’s top prosecutor said Monday that Supreme Judicial Court Chief Justice Ralph Gants was advocating for a “return to a failed policy” from 30 years ago. When judges had “unfettered” discretion, they exercised it “poorly,” Suffolk District Attorney Dan Conley said.
Conley, who holds an elected position, said he has not seen judges appear at community meetings in response to crime in Dorchester, Mattapan and Roxbury. “Have you ever seen a judge out there listening to the community? No,” Conley said. “Maybe they don’t see that as their position, but they’re operating in a vacuum. They don’t understand how drug traffickers and drug dealers and gang members are turning some neighborhoods in our city into very, very violent communities.”...
In a speech to attendees of a criminal justice conference at UMass Boston, Gants, who has emerged as a vocal critic of mandatory minimum sentencing in drug cases, acknowledged prosecutors have concerns about eliminating the mandatory minimums policy. “Now, let’s be honest: When some district attorneys say they fear judicial leniency, they really are saying that they do not want to relinquish to judges the power to impose sentences that minimum mandatory sentences give to prosecutors,” Gants said. “They would prefer that prosecutors decide what sentence a drug dealer receives.”
Gants, who worked as a federal prosecutor for eight years, said prosecutors are seeking to maintain “leverage” to induce a plea by dropping the mandatory minimum charge. “I understand why they would like to preserve their power to sentence,” he said. “What card player would agree to surrender the cards that yield a superior hand? For as long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidenced-based sentences and we will not be applying any of the three principles of just and effective sentencing.”
According to Gants, the three principles are considering the circumstances of the crime and the role of the defendant; ensuring that “the sentence should be no greater than necessary to accomplish the first principle”; and crafting a sentence that enables the defendant to “get past the past” and reduce recidivism.
Gants said the judiciary will implement the three principles through a “best practices” committee created by each trial court department with criminal jurisdiction. The committees will have a first draft prepared by Thanksgiving, and Gants is aiming for implementation of the “best practices” by next spring for cases where mandatory minimums don’t apply....
Gants’ remarks were the keynote address at a summit put together by the Massachusetts Criminal Justice Reform Coalition. During one of the panels that followed Gants’ talk, Conley responded to the chief justice, calling himself “the skunk at the garden party” and the “only alternate voice” in the room.
“I hope at the next summit that we have some more alternate voices and more vigorous debate on the efficacy of minimum mandatory sentences and how they’ve impacted our communities,” Conley said.
Conley said the state’s 11 district attorneys exercise their discretion “judiciously and wisely.” “There needs to be consistency across courtrooms, across counties, across regions, and I would argue that the 11 district attorneys, who are responsive to the public, are in the best position to exercise that discretion,” he said.
Out of a population of about 6.75 million residents, Massachusetts has about 1,000 individuals serving mandatory minimum drug sentences, according to Conley. Massachusetts “ought to be held up, frankly, as a beacon of how other states ought to do it,” Conley said. Conley added: “We shouldn’t leave to chance the idea that 400 judges with 400 different views on how defendants who commit drug offenses ought to be sentenced, and give them full and unfettered discretion. It is a recipe for disaster, I believe.”
During Conley’s response, Gants sat a few feet away from the stage with a smile. When Conley walked off the stage, Gants stood up, smiled again and they shook hands. Gants said he has also spoken to prosecutors about his views. “I deal in a court [in] which there are often dissents, so I’m comfortable with disagreement. It’s respectful disagreement, and we’ll keep talking,” he said.
Another round of notable new posts from the Collateral Consequences Resource Center
It has been a few weeks since I highlighted all the great work still being done regularly over at the Collateral Consequences Resource Center. So here are a bunch of new posts from CCRC from recent weeks:
"The free-market case for opposing the death penalty"
The title of this post is the headline of this new piece from The Week magazine. Here are excerpts:
There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.
The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....
With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.
Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....
Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.
"How Prison Stints Replaced Study Hall: America’s problem with criminalizing kids."
The title of this post is the headline of this lengthy new Politico magazine article. Here are excerpts from the start of the piece:
Police officers in Meridian, Mississippi, were spending so much time hauling handcuffed students from school to the local juvenile jail that they began describing themselves as “just a taxi service.” It wasn’t because schools in this east Mississippi town were overrun by budding criminals or juvenile superpredators — not by a long shot. Most of the children were arrested and jailed simply for violating school rules, often for trivial offenses....
For many kids, a stint in “juvie” was just the beginning of a never-ending nightmare. Arrests could lead to probation. Subsequent suspensions were then considered probation violations, leading back to jail. And suspensions were a distinct possibility in a district where the NAACP found a suspension rate that was more than 10 times the national average.
In 2012, the U.S. Department of Justice filed suit to stop the “taxi service” in Meridian’s public schools, where 86 percent of the students are black. The DOJ suit, still unresolved, said children were being incarcerated so “arbitrarily and severely as to shock the conscience.” We should all be shocked.
The reality, though, is that Meridian’s taxi service is just one example of what amounts to a civil rights crisis in America: a “school-to-prison pipeline” that sucks vulnerable children out of the classroom at an alarming rate and funnels them into the harsh world of police, courts and prison cells.
For many children, adolescent misbehavior that once warranted a trip to the principal’s office — and perhaps a stint in study hall — now results in jail time and a greater possibility of lifelong involvement with the criminal justice system. It should surprise no one that the students pushed into this pipeline are disproportionately children of color, mostly impoverished, and those with learning disabilities.
The story of Meridian is more than an example of school discipline run amok. It’s a key to understanding how the United States has attained the dubious distinction of imprisoning more people — and a larger share of its population — than any other country. It’s one reason why the United States today has a quarter of the world’s prisoners—roughly 2.2 million people — while representing just 5 percent of its total population. And it helps explain an unprecedented incarceration rate that is far and away the highest on the planet, some five to 10 times higher than other Western democracies....
The origins of the school-to-prison pipeline can be traced to the 1990s when reports of juvenile crime began to stoke fears of “superpredators” — described in the 1996 book Body Count as “radically impulsive, brutally remorseless youngsters” with little regard for human life. The superpredator concept, based on what some critics have derided as junk science, is now known to be a complete myth. Former Princeton professor and Bush administration official John DiIulio, the Body Count co-author who coined the term, admitted to The New York Times in 2001 that his theory of sharply rising juvenile violence had been wrong.
But the damage had been done. As these fears took root and mass school shootings like the one at Columbine made headlines, not only did states enact law laws to increase punishment for juvenile offenders, schools began to adopt “zero-tolerance” discipline policies that imposed automatic, pre-determined punishments for rule breakers.
At the same time, states across America were adopting harsh criminal laws, including long mandatory prison sentences for certain crimes and “three strikes” laws that led to life sentences for repeat offenders. The term “zero tolerance” was, in fact, adopted from policing practices and criminal laws that focused on locking up minor offenders as a way to stem more serious crime.
Somewhere along the way, as local police departments began supplying on-duty “school resource officers” to patrol hallways, educators began to confuse typical adolescent misbehavior with criminality. Schools became, more or less, a part of the criminal justice system. With police officers stalking the halls and playgrounds, teachers and principals found it easy to outsource discipline. Almost overnight, a schoolyard scuffle could now land a kid in a jail cell.
The results have been disastrous.
Interesting review of Ohio Gov John Kasich's clemency record
In part because seemingly so few modern executives make regular use of their clemency powers, and in part because Ohio Gov John Kasich has granted clemency in a number of high-profile capital cases, I had come to think my own governor's clemency record was pretty good. But this new Columbus Dispatch story, headlined "Kasich rarely uses clemency to pardon, commute sentences," details that Kasich's clemency record compares poorly to prior Ohio governors:
In his first four years in office, Gov. John Kasich used his executive clemency power more sparingly than any other Ohio governor in the past three decades.
He granted 66 of 1,521 requests, about 4.4 percent of 1,521 non-death-penalty cases he received and acted upon from 2011 to 2014, according to information obtained by The Dispatch under a public-records request. That makes him the most conservative with clemency of any Ohio governor going back to the 1980s, when the state began tracking gubernatorial clemency.
Last year, Kasich, a Republican who began his second term in January, approved 17 of 433 clemency requests he reviewed, about 4 percent. All of the cases approved were pardons, some going back to crimes committed more than 25 years ago. A pardon wipes out a past criminal record.
Kasich commuted the death sentences of five killers during his first term, but allowed 12 to be executed. He recently used his executive authority to push back the entire execution schedule for a year, to January 2016, to allow time for the Department of Rehabilitation and Correction to obtain sufficient quantities of new execution drugs as permitted by a change in state law....
In the past 30 years, Ohio governors have used clemency in different ways, sometimes reflecting personal ideological persuasions. Former Gov. Ted Strickland, a Democrat, approved 20 percent of 1,615 clemency requests he handled between 2007 and 2011. Most involved low-level, nonviolent offenses, but he did commute five death-penalty sentences to life without parole.
No Ohio governor in modern history has commuted a death sentence and set a prisoner free. Republican governors George V. Voinovich (1991-98) and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests they received. Gov. James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.
Democrat Richard F. Celeste, governor from 1983 to 1991, used his clemency power most liberally, commuting the death sentences of eight killers on Death Row in his next to last day in office. He also granted clemency to 25 female prisoners, reasoning they were victims of “battered-woman syndrome” and deserved mercy.
Celeste’s actions caused an uproar, and the clemency process was legally challenged. The General Assembly changed the law to require governors to have a recommendation from the Ohio Parole Board before making any clemency decision. The governor doesn’t have to agree with the parole board, but merely have a board recommendation in hand. In fact, Kasich differed with the board in 23 cases last year, each time rejecting clemency for inmates who had been favorably recommended.
New York Times editorial assails death decided "by a single vote" in Alabama and Florida
This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:
In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.
In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.
But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a coworker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.
Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”
The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.
This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?
The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-injection drug protocol behind state-secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.
Prior related posts:
- SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
- What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
Sunday, March 15, 2015
Senator Paul continues to emphasize criminal justice reform with minority audience
This new New York Times article, headlined "Rand Paul Focuses on Criminal Justice in Talk to Black Students," details the continued efforts by one prominent Senator to preach the need for criminal justice reform to groups historically distrustful of messages delivered by the GOP. Here are the details:
Senator Rand Paul laid out his vision on Friday for a legal system that makes it easier for people with criminal records to get jobs and to vote, telling students at a historically black college here that he believes there are still “two Americas” as the Rev. Dr. Martin Luther King Jr. said almost a half century ago.
Mindful of his audience and, no doubt, his appearance two years ago at Howard University when the mostly black audience was often skeptical of what he had to say, Mr. Paul, a Republican and a likely candidate for president, chose his words more carefully this time during his visit to Bowie State University....
Mr. Paul tried to avoid appearing presumptuous and at one point corrected himself when answering a question about the progress that black Americans have made. “I think sometimes we think we haven’t gone very far when I think we’ve come a long way,” he said, pausing to tweak his wording. “And I say ‘we’ collectively; obviously it’s not me.”...
There were a few awkward moments at the Howard event, like when he told the students that people had told him he was “either brave or crazy” to be there.
But on Friday he kept his remarks focused on correcting inequities in the criminal justice system and expanding economic opportunity. He repeatedly condemned the harsh drug sentencing laws that put so many minority defendants behind bars. “If you smoked some pot or grew some marijuana plants in college, you ought to get a chance,” he said.
Mr. Paul also made a case for expunging criminal records of people who have been convicted of nonviolent felonies so they can find employment more easily, a stance that puts him at odds with many in his party. “As Republicans we’re big on saying, ‘Well, we don’t want people permanently on welfare; we want them to transition from welfare to a job,’” he said. “People say, ‘Well, how am I supposed to get a job? I was a convicted felon.’”...
Mr. Paul, of Kentucky, has made an effort to reach out to AfricanAmerican constituencies in the past few years, drawing crowds that have traditionally voted for Democratic candidates but are curious about his libertarian brand of conservatism. He spoke at the Urban League’s summer conference in Cincinnati last summer and visited Ferguson, Mo., when protests broke out after a police officer shot an unarmed black man. He has also met with black pastors in Southern cities like Memphis and Louisville, Ky.
Some recent and older related posts:
- Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
- Others starting to appreciate "Rand Paul, Criminal Justice Hero"
- "4 Reasons Conservatives Are Embracing Prison Reform"
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
Saturday, March 14, 2015
Reviewing DOJ's opposition to any fraud guideline amendments
This Reuters article, headlined "Justice Department objects to white-collar sentencing reforms," details that the US Department of Justice is not too keen on proposed reformed to the federal sentencing guidelines for fraud offenses. Here are the excerpts:
The U.S. Justice Department has come out broadly against a series of proposals from a federal panel that would cut prison time for white-collar criminals. The department's views, revealed on Thursday at a hearing of the U.S. Sentencing Commission, marked a potential setback for the proposals, which defense lawyers had already criticized for being too moderate.
In a letter released at the meeting, the department objected to a proposal to adjust victim losses for inflation for the first time since 1987. Losses directly influence recommended prison term lengths, and the move would reduce fraud sentences by 26 percent on average. "It seems a somewhat odd thing to do," Benjamin Wagner, the U.S. Attorney for the Eastern District of California, said at the hearing.
The Justice Department also objected to a proposal to shift the emphasis in calculating sentences for stock fraud cases to financial gains instead of investor losses, a change that could reduce the amount of prison time some executives would face. The department's position came amid continuing debate over whether changes to the guidelines are necessary to address what even some judges have said are overly harsh recommended punishments for fraud offenders.
Fraud offenses constitute the third largest type of federal crime in America, behind only immigration and drugs cases. Over the last decade, average prison sentences for fraud have lengthened three-fold, the commission said. But after the U.S. Supreme Court declared the guidelines advisory in 2005, judges increasingly gave shorter terms than what the commission recommended. In 2012, the average fraud sentence was 22 months, compared to the 29-month minimum recommended, the commission said.
Critics say the data shows many judges view the guidelines as overly-driven by victim losses, at times resulting in potential life sentences in cases like stock frauds with high-dollar amounts.
The commission's proposals, released in January, were viewed as too moderate by groups like the American Bar Association, which had pushed for broader revision de-emphasizing the influence losses have not just in cases involving the stock market but also for other frauds, such as in mortgages and healthcare. Still, the commission said its proposal to adjust the loss calculations for inflation would itself reduce sentence lengths.
The Justice Department said any reduction would be contrary to "overwhelming societal consensus." Several commissioners, though, appeared skeptical of the department's position.
Prior related posts:
- US Sentencing Commission hearing on proposed fraud and other guideline amendments
- Brief account of what proposed fraud guideline changes might amount to
- US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines
"Death of the death penalty by lethal injection shortage?"
The question in the title of this post is the headline of this notable recent Chicago Tribune column. Here is how it starts:
A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.
Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.
Just in the last week:
• Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.
• Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.
• And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.
Oklahoma House passes safety valve to give judges more sentencing discretion
In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums. Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing." Here are the details:
The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.
Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.
Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....
Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.
“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”
Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.
Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.