Thursday, August 13, 2015
What can and should voters know about the criminal justice impact of marijuana prohibition as they consider repeal?
I will be off-line for most of the rest of the day in order to have a meeting with a retired Ohio judge (and perhaps some others) to discuss the question that is the title of this post. The question has become especially salient for Ohio voters today: as detailed in this post at MLP&R, as of yesterday it became official that, in less than 90 days, Ohio voters will be deciding whether to legalize marijuana in the Buckeye State for recreational and medical use.
I have spent a fair bit of time trying to rigorously assess, for Ohio and other jurisdictions, just how to measure and describe the "criminal justice footprint" of modern marijuana prohibition and how that footprint can be impacted by marijuana reform. But while I am off-line today, I would be grateful to hear from readers just what they would be eager to know, as a voter considering a reform proposal, about how the criminal justice might change (or not change) due to repeal of marijuana prohibition in a jurisdiction.
Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity
I had an inkling it might not take too long for lower courts to become divided on what the Supreme Court's big Johnson Armed Career Criminal Act ruling, which declared the residual clause of ACCA was void for vagueness, could and should mean for long-ago imposed sentences. And, sure enough, less than seven weeks after the Johnson ruling, we already have a big circuit split.
As detailed in this post last week, the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here), decided that a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 could bring a new, successor 2255 motion based on the Johnson ruling. But, now as flagged effective via this post at the "Southern District of Florida" blog, a divided three-judge panel of the the Eleventh Circuit had a different take on this issue in In re Rivero, No. 15-13089 (11th Cir. Aug. 12, 2015) (available here). Here is a key passage from the marjority opinion in Rivero:
We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price, the Seventh Circuit explained that “[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review” because “[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him.” Id. at *7. We disagree. We can “escap[e] th[at] logical conclusion” because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.
Our dissenting colleague assumes that the new rule announced in Johnson also applies to the residual clause of the career offender enhancement in the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear that precedents of the Supreme Court do not “necessarily dictate,” In re Anderson, 396 F.3d at 1339 (internal quotation marks and citation omitted), that Rivero may file his second or successive motion to vacate, set aside, or correct his sentence. See Dissenting Op. at 15 n.2. The Supreme Court has never held that the Sentencing Guidelines are subject to a vagueness challenge. And four of our sister circuits have held that the Sentencing Guidelines — whether mandatory or advisory — cannot be unconstitutionally vague because they “do not establish the illegality of any conduct” and are “designed to assist and limit the discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358, 363–66, 365 n.3 (7th Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 159–160 (8th Cir. 1990). But the absence of Supreme Court precedent provides an alternative ground for why we must deny Rivero’s application for leave to file a second or successive motion.
Especially because the Justice Department appears to be supporting Johnson retroactivity, I suspect we may end up with more circuits lining up behind Price than behind Rivero in the weeks ahead. But whatever transpires in other lower courts, it is now already clear that SCOTUS is going to need to take up Johnson's application before too long.
Some prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- What does Johnson mean for the past, present and future of the career offender guidelines?
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
- Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson
New juve research suggests punishment certainty matters over severity to achieve deterence
This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:
Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.
In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.
The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....
The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Wednesday, August 12, 2015
Lots of great reads via The Marshall Project
I really enjoy all the work being done by The Marshall Project, and this collection of recent items from the site highlights why sentencing fans should be making regular visits there:
"Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform"
The title of this post is the title of this interesting paper available via SSRN authored by Janet Moore, Marla Sandys and Raj Jayadev. Here is the abstract:
This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration. This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems. After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives.
First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard. Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy.
New Hampshire enacts novel law requiring defendant's presence in courtroom for victim impact statements
As reported in this Reuters piece, headlined "New Hampshire to make criminals face victims' families at sentencing," one ugly sentencing case has lead the Granite State to enact a novel sentencing procedure law. Here are the details:
New Hampshire Governor Maggie Hassan on Tuesday signed a law that requires convicted criminals to appear in court at sentencing when victims’ families and friends are given the opportunity to express their pain. The law, believed to be the first of its kind in the United States, was proposed after a man convicted last year of murdering a 19-year-old college student asked not to attend his sentencing, saying he didn't want to hear the victim's family “yell and whine and bitch and moan.”
In the end, convicted murderer Seth Mazzaglia, 33, dropped the request and attended the sentencing, where family members of his victim, Elizabeth "Lizzy" Marriott, expressed profound grief and anger toward him.
Her father, Bob Marriott, was among several relatives of crime victims who backed the bill. At the bill-signing ceremony, Hassan praised Marriott “for speaking up on behalf of his daughter Lizzy, for his family, and for all families impacted by crime.”...
The signing comes almost a year to the day after Mazzaglia was sentenced to life in prison without parole for first degree murder involving sexual assault, among other crimes. He was accused of having his girlfriend lure Marriott to their apartment so he could have sex with her. Prosecutors alleged Mazzaglia strangled Marriott after she rejected his sexual advances and then raped her lifeless body.
The key text of this new law, which can be found here, provides that the "defendant shall personally appear in court when the victim or victim's next of kin addresses the judge, unless excused by the court." The final phrase of this provision, which allows the court to excuse the defendant, confirms my instinct that this new sentencing law is much more about symbolism than substance. That said, especially because the symbolism of the sentencing process is often quite important to crime vicitms, this novel law strikes me as a beneficial way to give victims that much more respect in a sentencing process that sometimes forgets about their various concerns.
Tuesday, August 11, 2015
"Does Plea Bargaining Add to Criminal Court Caseloads?"
The question in the title of this post is the title of this new commentary by LawProf Darryl Brown at Casetext. Here are excerpts:
Crime rates have been declining for twenty years, and more recently the caseloads in many state and federal courts have been declining as well, although somewhat more modestly. Yet as courts got a little breathing room, the rate of guilty pleas has not declined. Instead, in the federal system and some states, guilty pleas increased—usually from an already-high rate (as a share of total convictions) of 90 or 95 percent. To legal scholars who have examined plea bargaining for decades, this was not a surprise. Studies of courts in the 1970s found that plea bargaining did not decline even when caseloads for a local court system sharply fell, leaving prosecutors and judges with proportionately more time to handle the rest. Federal plea bargaining, it now seems clear, increased as prosecutors gained more bargaining leverage from mandatory sentencing laws and federal guidelines that greatly restricted judges’ sentencing discretion.
Plea bargaining, in short, is not simply of function of crime rates and the criminal caseloads that result from them. It depends many things: whether the parties want to reach a deal, strength of the evidence, and — far from least — how much bargaining leverage the law gives to prosecutors. To say merely that “plea bargaining is essential” begs the real question. It doesn’t answer whether all plea bargains we now achieve — 95 percent in federal courts — are compelled by caseloads and strapped budgets. Plea bargaining may be essential, but how many — or what percentage of — cases must be resolved by guilty pleas rather than trials?...
Discretionary decisions play out differently when courts and prosecutors can handle more cases thanks to the efficiency of plea bargaining. If it doesn’t “cost” as much to charge and convict, it is more tempting to do so. Police know courts can process some additional petty offenses, and prosecutors know that they can handle more as well. This doesn’t have to be a conscious recognition in every officials’ mind ... [but] plea bargaining helps to create a new set of norms or baselines — about how many cases prosecutors and judges ought to handle, about which defendants ought to plead guilty, and perhaps about which events deserve to be charged as crimes. Cases with evidence so weak that a trial conviction is highly uncertain now look worth the effort because, with hard-ball right plea bargaining, they can be turned into convictions. After years of achieving 95 percent of convictions through guilty pleas, a court system that suddenly had trials in 15 percent of cases would look like it is doing something wrong. The defendants who insisted on those additional trials would seem like ones whose cases didn’t “deserve” a trial and, consequently, that merit a harsher sentence because they had one.
All of these things are hard to measure. Empirical researchers have not yet demonstrated that plea bargaining actually drives up the number of cases in criminal courts. It may be the kind of phenomena that simply can’t be reliably measured. But ... recall that criminal caseloads continue to increase long after crime began to decline in the early 1990s. More tellingly, Professor John Pfaff has found that evidence that, in many states, prosecutors file charges a higher percentage of cases they receive from police than they did twenty or thirty years ago. That is, they use their discretion less often to decline to prosecute. Reasons for this are unclear. Maybe police now collectively send prosecutors case reports backed by stronger evidence. Maybe the current generation of prosecutors has tougher-on-crime views than the previous generation did. But we ought to be concerned that we have made plea bargaining so common, and so efficient, that its effect has not simply been to enable the criminal justice system to process more cases without more judges and prosecutors. There is a good chance that plea bargaining has also increased the number of criminal cases in the system.
That might be good thing if crime was increasing. Or if we simply couldn’t afford to increase funding for prosecutors and judges at the same that we do for police and prisons. Or if we placed no social and political value on trial by jury. But none of that is true. What is true is that, as we have increased the rate of guilty pleas from already high levels of 75 or 85 percent of convictions to 90 or 95 percent, the United States also created the single most punitive criminal justice system, with by far the highest incarceration rate, in modern world history. That alone ought to be reason to worry that our exceedingly efficient system of plea bargaining has triggered “rebound effects.”
Thanks to prior commutation, Missouri marijuana lifer now to get paroled
As reported in this Huffington Post piece, headlined "Man Who Was Serving Life In Prison For Marijuana To Be Set Free," there has been a notable development in a notable drug sentencing case in Missouri. Here are the details:
Jeff Mizanskey, a 61-year-old Missouri man who was serving life in prison for nonviolent marijuana offenses, will be set free in a matter of days, his attorney confirmed Monday to The Huffington Post. "We were notified today that he will be granted parole and be released within '10 to 25 days,'" lawyer Dan Viets said about the Missouri Department of Corrections' decision. Mizanskey had met with the parole board just last Thursday.
After two decades in prison, Mizanskey became eligible for parole in May when Missouri Gov. Jay Nixon (D) commuted his life sentence, while granting pardons to five other nonviolent offenders who had already completed their punishments. Parole was an option that Mizanskey did not have previously because he had been sentenced as a "prior and persistent drug offender" under Missouri's three strikes law, which was repealed last year.
All three of Mizanskey's offenses involved marijuana. He was given a life sentence after a conviction for attempting to sell about six pounds of pot in a 1993 police sting operation.
A Change.org petition seeking clemency for Mizanskey had received nearly 400,000 signatures. "Great news everyone... Jeff is coming home this month!" said a post Monday on the Free Jeff Mizanskey Facebook page. "We want everyone to know how greatful [sic] we are for all the support received throughout this whole ordeal."
Marijuana offenses, mainly involving simple possession, account for roughly half of all drug-related crimes. According to a recent report from the American Civil Liberties Union, 88 percent of the more than 8 million marijuana arrests between 2001 and 2010 were for possession alone. There were more arrests in the U.S. for marijuana possession in 2011 than for all violent crimes combined, according to the FBI's uniform crime report. The ACLU report also found significant racial disparities in the arrest patterns. While black and white Americans use marijuana at about the same rates, blacks were nearly four times more likely than whites to be arrested for marijuana during the years examined.
"Buying Access: How Corporations Influence Decision Makers at Corrections Conferences, Trainings, and Meetings"
The title of this post is the title of this new report issued by In the Public Interest. Here is the report's executive summary:
Private corrections companies, which contract with corrections departments and facilities to oversee and provide services to incarcerated people, make up a multibillion-dollar industry. Every year, they devote resources to building influence with decision makers in order to find and capitalize on new business opportunities. One key avenue of influence is through professional corrections associations, which are non-profit organizations that support corrections officials, including wardens, administrators, state Department of Corrections staff, sheriffs, and others through events, trainings, and public policy advocacy.
This report first details how companies spend millions of dollars sponsoring conferences, paying vendor fees, and providing other funding to gain access to the professional corrections associations. This report then shows how corrections companies leverage this access in ways that can influence decision makers and benefit the companies’ bottom lines.
Considering corrections companies’ track records of providing low-quality services that harm prisoners, communities, and taxpayers, the influence they exert through professional corrections associations is cause for concern.
The research in this report is based on limited information that professional corrections associations make publicly available. Consequently, the report’s findings constitute only a portion of the total contributions made by companies and the subsequent opportunities they receive to influence decision makers.
Private companies make contributions to professional corrections associations. In 2014, sponsors, vendors, corporate partners, and other non-individual entities contributed at least $3 million to five of the largest professional corrections associations, including the American Correctional Association, the American Jail Association, the Association of State Correctional Administrators, the Corrections Technology Association, and the National Sheriffs’ Association.
In return, corrections contractors are able to build relationships with and influence decision makers in key ways:
Corrections companies send executives and staff to professional corrections association conferences to meet decision makers. Many companies receive lists of attendees, allowing the corporate staff to target certain corrections officials.
Corrections companies lead trainings and workshops at conferences. Often times, companies will directly market goods and services.
Corrections companies host conference events where their executives and marketing staff meet with and give speeches to corrections officials.
Corrections companies market their products and services at conference vendor booths to identify potential government customers and generate leads.
Corrections companies advertise on conference materials, such as the program books, hotel room key cards, tote bags, and take-home mugs. This marketing encourages officials to consider the companies’ products and services when making purchasing and outsourcing decisions.
Urban Institute creates intriguing on-line "Prison Population Forecaster"
I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:
Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.
Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.
But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?
To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.
The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.
Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.
This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.
Monday, August 10, 2015
"Just Facts: America’s Non-Existent 'Spike in Crime'"
The title of this post is the headline of this interesting discussion and analysis by Matthew Friedman over at The Brennan Center for Justice. I recommend a full read of the post to get all the important details (and to see how LeBron James' free-throw shooting record is incorporated into the discussion). Here is how the post starts and ends to whet appetites:
Newspapers lately have been filled with disturbing headlines about “spikes in crime.” In March, the New York Daily News wrote, “The murder rate in New York City has spiked an alarming 20% in the first two months of the year, prompting NYPD brass to rethink strategy to curb the deadly trend.” The Los Angeles Times reported “LAPD struggles with spike in violent crime, shootings.” Even the BBC asked “Why has the murder rate in some US cities suddenly spiked?”
These headlines, however, conflict with statistical data showing that we are actually enjoying some of the lowest crime rates in more than half a century. Why then do we continue to see headlines that seem to say the exact opposite? Moreover, how is it that most Americans inaccurately believe that crime is on the rise?
Well, when we don’t read past the headlines, it is hard to see the forest for the trees. A closer analysis of crime over time provides a less alarming and more accurate picture of crime trends than the short-term analysis headline writers often rely on....
Data shows that there is no nationwide crime wave washing over our cities. And there is no compelling evidence that one is imminent either. New York, like many other cities around the country, is experiencing an historic ebb in most types of crime. So readers beware, don’t take headlines at face value. Startling headlines need not lead to dire conclusions.
Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?
Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here). Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.
Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)." This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.
I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary. But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.
As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically. But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."
Some prior posts on Johnson and its possible impact:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- What does Johnson mean for the past, present and future of the career offender guidelines?
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
- Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?
Taking stock of what Glossip now means for executions throughout the US
The most important practical question in the wake of the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol — not only for the roughly 3000 murderers currently on death row throughout the United States, but also for all those eager to see death sentences carried out — is whether Glossip will increase the chances and speed with which the condemned get taken to a death chamber for a execution. This new AP article, headlined "Justices Speak out About Death Penalty, but Executions Go On," speaks somewhat to this reality (while also highlighting that court challenges to death sentences are not going to decline anytime soon). Here are excerpts:
Wherever their summer travels have taken them, Supreme Court justices probably will weigh in over the next few days on Texas' plans to execute two death row inmates in the week ahead. If past practice is any guide, the court is much more likely to allow the lethal-injection executions to proceed than to halt them.
Opponents of the death penalty took heart when Justices Stephen Breyer and Ruth Bader Ginsburg made the case against capital punishment in late June as arbitrary, prone to mistakes and time-consuming. Even if death penalty opponents eventually succeed, the timeline for abolition probably will be measured in years, not months.
That's because Breyer, joined by Ginsburg, was writing in dissent in a case involving death row inmates in Oklahoma, and five sitting justices, a majority of the court, believe "it is settled that capital punishment is constitutional," as Justice Samuel Alito wrote in his opinion for the court in that same case.
Texas has scheduled back-to-back executions Wednesday and Thursday for Daniel Lee Lopez and Tracy Lane Beatty. Lopez was convicted of running over a Texas police officer with his car during a high-speed chase. Lopez' lawyer already has asked the court to stop the execution. Beatty strangled his 62-year-old mother, then stole her car and drained her bank accounts. He has an appeal pending in lower courts and could also end up at the Supreme Court.
The justices rarely issue last-minute reprieves to death-row inmates. Even after Breyer's opinion calling for a re-examination of capital punishment by the Supreme Court, no justice publicly backed a Missouri inmate's plea to halt his execution to allow the court to take up the constitutionality of the death penalty.
Similarly, the three Oklahoma inmates who lost their high court case now face execution in September and October and want the justices to reconsider the decision from June in light of Breyer's dissent. The court almost never does that....
The 18 executions that have taken place so far this year have been carried out in just five states — Texas, Missouri, Georgia, Florida and Oklahoma. Nine of those were in Texas. Twelve states with the death penalty have not had an execution in more than five years. That list includes California and Pennsylvania, which between them have more than 900 death row inmates....
Geographic disparity was among several defects Breyer and Ginsburg identified in June. Another is the length of time many inmates spend living under a sentence of death, which Breyer had previously suggested also might be a violation of the constitutional ban on cruel and unusual punishment. Six of the 18 men who have been executed in 2015 spent at least 20 years on death row, including one who served 31 years before his execution....
Among the questions surrounding the possibility that the Supreme Court would take up the constitutionality of the death penalty is the makeup of the court itself. With four justices in their late 70s or early 80s, the next president might have the chance to fill several vacancies and could change the court's direction.
"Obviously, the composition of the court matters greatly and the biggest unknown variable about the life of the American death penalty is the presidential election of 2016. My expected time frame for constitutional abolition varies greatly based on the result," said Jordan Steiker, a University of Texas law professor....
Steiker said he thinks Breyer's dissent will serve as a road map for death penalty lawyers and future justices who may not feel constrained to wait before grappling with executions. "It was invigorating to those who'd like to see constitutional abolition," he said. "The arguments not new, but they had not been marshaled as effectively by a justice until this opinion."
Critically, Glossip does not preclude Eighth Amendment challenges to various execution protocols, it just makes it somewhat harder for these challenges to prevail. In addition, states continue to face practical challenges in acquiring execution drugs and often have to deal with with state-level execution administration difficulties. For those reasons, I am not surprised we have not yet seen a significant post-Glossip up-tick in executions.
More broadly, unless and until a handful of recently execution-dormant states with sizeable death rows get back in the execution business — states like Alabama, Arizona, California, North Carolina, Ohio and Pennsylvania — it remains likely that more condemned murderers on death rows in the US will die of natural causes than will have their capital punishments actually carried out.
Sunday, August 9, 2015
New York Times says: "Congress and Obama Are Too Timid on Marijuana Reform"
A little more than a year ago, as first reported here, the New York Times editorial board ran a provocative serious of editorial calling for the end of marijuana prohibition. I had hoped that in the following weeks and months the NYTimes editorial board would become a vocal and aggressive advocate and cheerleader for state marijuana reforms and federal reform proposals, but it seems there was relatively little editorial follow-up on this front subsequently. This new editorial, headlined "Congress and Obama Are Too Timid on Marijuana Reform," perhaps makes up for some lost time by effectively chastising federal policy-makers for falling behind on the marijuana reform front. Here are excerpts:
Even as support for ending marijuana prohibition is building around the country, Congress and the Obama administration remain far too timid about the need for change.
Last year, residents in Alaska, Oregon and the District of Columbia voted to join Colorado and Washington State in making recreational use of marijuana legal. Later this year, residents of Ohio are expected to vote on a ballot measure that would legalize it. Nevadans will vote on a legalization proposal next year. And Californians could vote on several similar measures next year.
Instead of standing by as change sweeps the country, federal lawmakers should be more actively debating and changing the nation’s absurd marijuana policies, policies that have ruined millions of lives and wasted billions of dollars. Their inaction is putting businesses and individuals in states that have legalized medical and recreational marijuana in dubious legal territory — doing something that is legal in their state but is considered a federal crime. Many growers, retailers and dispensaries also have to operate using only cash because many banks will not serve them, citing the federal prohibition....
Congress has taken a few positive steps, like approving a provision that would prevent the Justice Department from using federal funds to keep states from carrying out their own medical marijuana laws. And some senior Republicans, including Mr. Grassley and Senator Orrin Hatch of Utah, have expressed support for the medical use of a compound known as cannabidiol, which is found in the cannabis plant but is not psychoactive. The Obama administration recently made it easier for scientists to study marijuana by removing a requirement that studies not funded by the federal government go through an additional review process, beyond what is required for researchers working with other drugs.
But both Congress and the White House should be doing more. Specifically, marijuana should be removed from the Controlled Substances Act, where it is classified as a Schedule I drug like heroin and LSD, and considered to have no medical value. Removing marijuana from the act would not make it legal everywhere, but it would make it easier for states to decide how they want to regulate it.
Even as Washington demurs, efforts to legalize marijuana continue in the states.... Direct democracy can sometimes produce good results. But it would be far better for Congress and the president to repeal failed laws and enact sensible drug policies.
Kudos to the Times for encouraging some proactive federal work in this arena, and I have long believed that an (easy?) first step for the feds might be to create some kind of marijuana reform task force or commission (or even a drug policy reform commission) along lines akin to the Colson Corrections Task Force recently created by Congress or the 21st Century Policing Task Force recently created by the President. There is so much state reform activity going on (and so much confusions about the impact of these reforms), I think the feds could and should at this point at least try to create an neutral institution that will study and assess all the rapid developments taking place at the state level.
As long-time readers know, one way for the feds and others to keep an eye on some highlights of state-level developments is by following my Marijuana Law, Policy & Reform blog. Here are just a few recent notable posts from that space:
Why aren't sentencing recommendations part of the ABA-LDF's "Joint Statement on Eliminating Bias in the Criminal Justice System"?
I just came across recently this intriguing and lengthy "Joint Statement on Eliminating Bias in the Criminal Justice System" put together and released last month by the American Bar Association and the NAACP Legal Defense and Educational Fund. The statement has a lengthy introductory discussion of concerns about racial bias in the operation of American criminal justice systems, and here is part of this intro:
Given the history of implicit and explicit racial bias and discrimination in this country, there has long been a strained relationship between the African-American community and law enforcement. But with video cameras and extensive news coverage bringing images and stories of violent encounters between (mostly white) law enforcement officers and (almost exclusively African-American and Latino) unarmed individuals into American homes, it is not surprising that the absence of criminal charges in many of these cases has caused so many people to doubt the ability of the criminal justice system to treat individuals fairly, impartially and without regard to their race.
That impression is reinforced by the statistics on race in our criminal justice system. With approximately 5 percent of the world’s population, the United States has approximately 25 percent of the world’s jail and prison population. Some two-thirds of those incarcerated are persons of color. While crime rates may vary by neighborhood and class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and incarceration rates are unaffected by attitudes and biases regarding race....
Given these realities, it is not only time for a careful look at what caused the current crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial bias – in all of its forms – from the criminal justice system.
The statement then goes on to list 12 detailed action items in the form of reforms viewed to be "necessary investments that are essential to strengthening public confidence in the rule of law and the legitimacy of our justice system. Dinconcerningly, though, none of these reforms addresses directly or even indirectly reforming sentencing laws that have initially emerged from questionable (and often racialized) assumptions and that have an indisputably disproportionate impact on communities of color. Here I am thinking particularly about the enduring federal crack/powder sentencing differential and many state felon disenfranchisement laws.
In addition, missing from the urged reforms is the useful idea long promoted by Marc Mauer and The Sentencing Project: having 'Racial Impact Statements' similar to fiscal or environmental impact statements prepared for any proposed criminal justice legislation so that legislators and the public can better assess and examine possible racial effects of all proposed legal reforms.
In the end, I guess I understand the sentencing omissions in the Joint Statement given that recent controvesial police-citizen encounters seem to have been the driving force behind the document. Still, I find it both curious and troubling that two critical advocacy institutions, both of which have played very important roles in advocating for sentencing reform, failed to have a least one of a dozen of bias-elimination reform proposals speak directly to modern sentencing laws and practices.
Saturday, August 8, 2015
Ohio Gov (and GOP Prez candidate) links Obamacare and crime/recidivism reduction
I am a big fan of Ohio Gov John Kasich for a variety of reasons, and my affinity for the guy is significantly enhanced by the fact that he has, as noted in this article, appropriately linked health care reforms and public safety. The article is headlined "Kasich Says Obamacare Empties Prisons — In a Good Way," and here are excerpts:
The Ohio governor says the program, unpopular with Republicans, has reduced recidivism rates. Ohio Gov. John Kasich defended his expansion of Medicaid under Obamacare at Thursday night’s Republican presidential debate.
The Medicaid expansion, unpopular among many of the Republican faithful, has benefited mentally ill prison inmates, said Kasich. “I’d rather get them their medication so they could lead a decent life,” he said.
“Eighty percent of the people in our prisons have addictions or problems,” Kasich added. “We now treat them in the prisons, release them in the community and the recidivism rate is 10 percent….”
I have highlighted in a number of prior posts that a lot of "wonks" have sensibly suggested that Obamacare might prove over time to be an extraordinarily valuable public safety achievement. Here are some of these prior posts:
- "Can Obamacare Reduce the Cost of Corrections?"
- "Obamacare Is a Powerful New Crime-Fighting Tool"
- Might Obamacare end up reducing prison populations "more than any reform in a generation"?
- Another effective review of how Obamacare could be "an antidote to crime"
Friday, August 7, 2015
Aurora Shooter gets LWOP, not death, from Colorado jury
In a notable (but maybe not too surprising?) outcome, the Colorado jury previously quick to convict Aurora shooter James Holmes of capital murder today returned a sentencing verdict of life instead of death. More details and discussion of this verdict's significance will follow as time allows.
UPDATE: This FoxNews report's headline provides the basic reason for the outcome: "1 juror firmly opposed death penalty for theater shooter James Holmes." Here is more:
Nine of the 12 jurors in the Colorado theater shooting trial wanted to execute James Holmes, but one was steadfastly against the death penalty and two others wavering, a juror told reporters after the verdict was announced.
Because the 12 jurors failed to unanimously agree that Holmes should be executed, he will be sentenced to life in prison without parole for the 2012 attack on a midnight screening of a Batman movie in Aurora that also left 70 injured.
"Mental illness played into the decision more than anything else," said the woman, who would not give her name. "All the jurors feel so much empathy for the victims. It's a tragedy."
A juror told The New York Times that a fellow juror was solidly opposed to a death sentence. The juror said nine were in favor of the punishment, two were apparently on the fence about the decision. "There was nothing further to discuss at that point," the juror said. "It only takes one."
The verdict came as a surprise. The same jury rejected Holmes' insanity defense, finding him capable of understanding right from wrong when he carried out the attack. It also quickly determined the heinousness of Holmes' crimes outweighed his mental illness in a prior step that brought them closer to the death penalty. There were gasps and tears in the courtroom as the verdict was read. One man from the victim side got up and stormed out after the first one....
Holmes himself stood staring straight ahead as the verdicts were read, showing little emotion, but when he returned to his seat he leaned over to defense attorney Tamara Brady, grabbed her hand with a smile, and said "thank you." Loud sobbing could be heard from the family section, where some sat with their heads in their hands.
The courtroom was also full of first responders, including Aurora police department officers -- some of whom cried along with the families as the verdicts were read. Sandy Phillips, whose daughter Jessica Ghawi was killed by Holmes, shook her head no and then held it in her hands. Ashley Moser, whose 6-year-old daughter died in the attack and who was herself paralyzed by Holmes' bullets, also shook her head and then slowly leaned it against the wheelchair of another paralyzed victim, Caleb Medley....
The defense had argued that Holmes' schizophrenia led to a psychotic break, and that powerful delusions drove him to carry out one of the nation's deadliest mass shootings. At least one juror agreed — a verdict of death must be unanimous. Jurors deliberated for about six and a half hours over two days before deciding on Holmes' sentence.
They reached their decision after the judge granted their request earlier Friday to re-watch a graphic crime scene video taken immediately after the massacre. The 45 minutes of footage, played during the trial, shows 10 bodies lying amid spent shell casings, popcorn and blood.... The jury's final decision came after days of tearful testimony from relatives of the slain.
The case could have ended the same way more than two years ago, when Holmes offered to plead guilty if he could avoid the death penalty. Prosecutors rejected the offer. But the victims and the public might not have ever learned in detail what was behind the shootings had the plea deal been accepted....
Four mental health experts testified that the shooting wouldn't have happened if Holmes weren't severely mentally ill. He was having increasingly palpable delusions that killing others would increase his own self-worth, forensic psychiatrist Jeffrey Metzner said.
"Judge orders Texas man to get married or face jail time"
The title of this post is the headline of this local report on a recent local sentencing in Texas that makes for perfect Friday afternoon follies. (First joke alternative headline: "Judge orders Texas man to face either short-term or long-term loss of true freedom.") Here are the (ugly? amusing? semi-sweet? unconstitutional?) details:
An East Texas couple says their choice to marry when they wanted to was taken away by a criminal court judge. In July, a Smith County judge sentenced Josten Bundy to get married to his 19-year-old girlfriend as part of his probation, which also included writing Bible verses and getting counseling.
The court case stemmed from a February altercation between Bundy and the ex-boyfriend of his girlfriend, Elizabeth Jaynes. “[The ex-boyfriend] had been saying disrespectful things about Elizabeth, so I challenged him to a fight,” said Bundy. “He stepped in and I felt like it was on and I hit him in the jaw twice.”
Bundy said the ex-boyfriend did not require medical attention, but pressed assault charges. “I took matters into my own hands and I know that’s wrong,” Bundy said. “I know I was raised better, but it happened.”
At his sentencing hearing, Judge Randall Rogers asked Bundy about the fight. “Is she worth it?” Judge Rogers asked Bundy, according to court transcripts. “I said, well to be honest, sir, I was raised with four sisters and if any man was talking to a woman like that,” recalled Bundy, “I’d probably do the same thing.”
Judge Rogers asked Bundy if he was married to Jaynes and then said, “You know, as a part of my probation, you’re going to have to marry her…within 30 days.” If Bundy declined to do the probation, he would be sentenced to 15 days in jail. “He offered me fifteen days in jail and that would have been fine and I asked if I could call my job [to let them know],” said Bundy. “The judge told me ‘nope, that’s not how this works.’”
Jaynes, who was in the courtroom said the proposal from the judge embarrassed her. “My face was so red, people behind me were laughing,” said Jaynes. “[The judge] made me stand up in court.”
Afraid of Bundy losing his job if he spent two weeks behind bars, the couple applied for their marriage license and scheduled a date with the justice of the peace to get married. “It just felt like we weren't going to be able to have the wedding we wanted,” said Jaynes. “It was just going to be kind of pieced together, I didn't even have a white dress.”
The pair said a summer courthouse wedding was nothing like what they pictured when they imagined their future nuptials while they were dating. “I used to watch Say Yes to the Dress and all those shows and all the dresses and think about what kind of dress I would have,” said Jaynes. “I would have liked a spring wedding when it’s not too hot and not too cold.”...
But with only 18 days to plan, even the people most important to them were missing. "My father didn’t get to go, and that really bothers me, I know he would have liked to be there,” said Bundy. “None of my sisters got to show up, it was such short notice, I couldn’t get it together."
The father of the bride, Kenneth Jaynes, wanted answers. “[I felt] anger; I was mad. [The judge] can’t do this by court ordering somebody to be married,” said Kenneth Jaynes. “I contacted a couple of lawyers but they told me someone was trying to pull my leg…that judges don't court order somebody to get married.”
Judge Rogers declined to interview about an open probation case. He also declined to comment generally about his sentencing practices. Attorney Blake Bailey, who practices constitutional law, said an order to marry is not legal. “To say you're not going to be criminally punished if you get married is way out of left field,” said Bailey. “It sounds like the old days of shotgun weddings, but not even the judge is capable of enforcing, what he thinks is best for some people in his court.”
Bundy and Jaynes say they do not at all regret getting married, but they do regret not being able to plan or have control over their special day. “What if we [had said to the judge] we don't want to get married right now and we're not ready?” said Jaynes. “Is he going to go to jail? It scared us, a little bit.”
Attorney Bailey said the sentence would have likely been struck down on appeal to a higher court.
US Sentencing Commission proposes guidelines amendments to deal with SCOTUS Johnson ruling
I just finished watching on-line the brief public meeting today of the US Sentencing Commission, and the efficient event tracked closely this on-line notice/agenda. Ever the efficient agency, within minutes of the conclusion of the meeting, the USSC got up on its website this news release reporting on the Commission's significant actions today:
The United States Sentencing Commission voted today to seek comment on proposed changes to the existing guideline definitions of a “crime of violence.” The proposed changes are primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).
In Johnson, the Supreme Court struck down as unconstitutionally vague a portion of the statutory definition of “violent felony” used in a similar penalty provision in the Armed Career Criminal Act (ACCA). While the Supreme Court in Johnson did not consider or address sentencing guidelines, the statutory language the Court found unconstitutionally vague, often referred to as the “residual clause,” is identical to language contained in the “career offender” sentencing guideline, and other guidelines which enhance sentences based on prior convictions for a crime of violence.
Consistent with Johnson, the proposal would eliminate from the guideline definition of “crime of violence” the residual clause, which provides that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. In addition, the proposal would provide definitions for several enumerated crimes of violence.
“We already see litigation over the impact of Johnson on the sentencing guidelines,” said Judge Patti B. Saris, Chair of the Commission. “In light of uncertainty resulting from the Johnson decision, we feel that it is prudent to begin considering whether, as a matter of policy, the guidelines should also eliminate the residual clause. We want to begin the process of seeking public comment so that the Commission could vote on a guideline amendment as early as possible, perhaps as soon as January 2016. However, this proposal is only preliminary and we look forward to public comment furthering informing us on this complex topic. We also intend to continue to study recidivist enhancements including those based on prior drug convictions in the guidelines throughout the upcoming amendment cycle.”
The Commission also unanimously approved its list of priorities for the coming year. Among its top priorities again is continuing to work with Congress to reduce the severity and scope of certain mandatory minimum penalties and to consider expanding the “safety valve” statute that exempts certain low-level non-violent offenders from mandatory minimum penalties.
“The Commission has taken some steps on its own to reduce federal drug sentences and relieve some of the overpopulation in the federal prisons, but only Congress can make the more fundamental changes needed to address the severity and disparity problems associated with certain mandatory minimum penalties,” said Judge Saris. “We look forward to continuing to work with Congress on this vital issue.”
The Commission will continue to work on several multi-year projects, including an examination of the overall structure of the advisory guideline system, a comprehensive recidivism study, and a review of federal practices relating to the imposition and violations of conditions of probation and supervised release and immigration.
Here are the two key documents released by the Commission on its website today that reflect and detail the summary provided by the press release:
"What We Learned From German Prisons"
The title of this post is the headline of this notable New York Times op-ed authored by Nicholas Turner, president of the Vera Institute of Justice. and Jeremy Travis, president of John Jay College of Criminal Justice. Here are excerpts:
Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.
The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs...
This is an encouraging moment for American advocates of criminal justice reform. After decades of callousness and complacency, the United States has finally started to take significant steps to reverse what a recent report by the National Research Council called a “historically unprecedented and internationally unique” experiment in mass incarceration. Congress, in a bipartisan effort, seems prepared to scale back draconian federal sentencing laws. Many states are making progress in reducing their prison populations. And President Obama, in a gesture of his commitment to this issue, last month became the first American president to visit a federal correctional facility.
The delegation that we took to Germany represented the emerging national consensus on this issue. It included a Democratic governor; corrections officials from across the political spectrum; chief prosecutors; formerly incarcerated individuals; a liberal scholar of race and criminal justice; and representatives from Right on Crime and the Charles Koch Institute, conservative groups that advocate reform, as well as the evangelical Christian group Prison Fellowship.
But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.
While the United States currently incarcerates 2.2 million people, Germany — whose population is one-fourth the size of ours — locks up only about 63,500, which translates to an incarceration rate that is one-tenth of ours. More than 80 percent of those convicted of crimes in Germany receive sentences of “day fines” (based on the offense and the offender’s ability to pay). Only 5 percent end up in prison. Of those who do, about 70 percent have sentences of less than two years, with few serving more than 15 years.
The incarcerated people that we saw had considerable freedom of movement around their facilities and were expected to exercise judgment about how they used their time. Many are allowed, a few times a year, to leave the prison for a few hours or overnight to visit friends and family. Others resided in “open” facilities in which they slept at night but left for work during the day. Solitary confinement is rare in Germany, and generally limited to no more than a few days, with four weeks being the outer extreme (as opposed to months or years in the United States).
The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.
Germans, like Americans, are greatly concerned with public safety. But they think about recidivism differently. During our visit, we heard prison professionals discussing failure in refreshingly unfamiliar terms: If, after release, an individual were to end up back in prison, that would be seen as a reason for the prison staff members to ask what they should have done better. When we told them stories of American politicians who closed a work-release or parole program after a single high-profile crime by a released inmate, they shook their heads in disbelief: Why would you close an otherwise effective program just because one client failed?...
The first article of the German Constitution reads, “Human dignity shall be inviolable.” Granted, our own Constitution bans cruel and unusual punishment and protects individuals against excessive government intrusions. As was noted by the Supreme Court justice Anthony M. Kennedy in a landmark 2011 opinion ordering California to reduce its prison population: “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment.”
These words hold much promise, but currently they have far too little impact on actual conditions in American prisons. In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.
The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.
Thursday, August 6, 2015
Teen placed on sex offender registries after encounter with girl claiming to be 17 to be resentenced
According to this new CNN piece, there seems to be a notable new legal development in a notable case of a teen facing extreme sex offender restrictions after a seemingly not-so-extreme sex offense. The piece is headlined "Judge reconsidering case of teen on sex offender registry," and here are the details:
A 19-year-old Indiana man convicted of a sex offense after a teenaged girl lied about her age on a hookup app may get a new sentence. The judge in the case, Dennis Wiley, did not make a decision Wednesday, but he agreed to consider Zach Anderson's request to be resentenced, meaning that Anderson could potentially be taken off the sex offender registry.
Anderson met the girl on the dating app "Hot Or Not." The 14-year-old girl lied about her age, claiming she was 17, which made having sex with her a crime. She lived in southern Michigan, close to Anderson's parents' home in Elkhart, Indiana. Anderson was given a 90-day jail sentence, five years probation and placed on both Indiana's and Michigan's sex offender registry for the next 25 years -- the same registry as child rapists, pedophiles and predators.
Anderson and his lawyer, Scott Grabel, had asked a court in Niles, Michigan, to vacate Anderson's sentence, alleging that prosecutors broke the plea agreement, the defense attorney said. Grabel, who accuses the prosecution of not staying neutral during the sentencing of Anderson as required under the agreement, described the judge's decision Wednesday as a "significant step." Wiley is expected to make a further ruling in about a week.
"In the long run, I'm confident we're gonna get this thing fixed," the attorney told CNN. Both the girl's mother and the girl herself had earlier appeared in court, to say they didn't believe Anderson belonged on the sex offender registry....
"Our goal is to get this case resentenced in front of a different judge, because the law mandates if the prosecutor violates their plea agreement, then it should be sent to a different judge for possible resentencing, or if we want to withdraw the plea and go to retrial that may be an option, as well," Grabel told CNN before the court action Wednesday.
Anderson's attorney is also striving to get the entire case dismissed. "I don't certainly speak for the public in general, but the comments I've read nationally think that his whole life shouldn't be ruined by his decision to go on a date and obviously have sexual relations with that person, especially when that person in all honesty misrepresented their true age," Grabel said.
As a registered sex offender, Anderson can't access the Internet, go to a mall or linger near a school or playground. His parents say because he has a 15-year-old brother, he can't even live at home any longer....
Anderson's case has stirred much debate about the one-size-fits-all sex offender laws that treat all offenders the same whether they are serial child predators or teens who've had sex with a girlfriend. His family has started a Facebook page, called "Justice 4 Zach," and has been very vocal about what they call the injustice of the sex offender registry. "He's obviously not a sex offender," Anderson's father told CNN, "I mean when there's a consensual act, to have one person labeled as the offender and the other person as a victim ... It's hard to swallow."
A former judge in a nearby town said the sex offender registry has to be changed. "If we caught every teenager that violated our current law," said former Judge William Buhl, "we'd lock up 30 or 40% of the high school. We're kidding ourselves."
According to The National Center for Missing & Exploited Children, there are 850,000 people on the sex offender list and about a quarter of them were juveniles when they were sentenced, but the records are not broken down by the severity of the crimes they committed.
Some recent related posts:
- "For Juvenile Sex Offenders, State Registries Create Lifetime Of Problems"
- Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
- New York Times reviews juve problems with modern sex-offender laws
"Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century"
The title of this post is the headline of this new paper just now appearing on SSRN and authored by Meg Beardsley, Sam Kamin, Justin F. Marceau and Scott Phillips. Here is the abstract:
This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state.
Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.
Some (simple? tough?) questions on crime and punishment for the GOP field
As detailed in some prior posts below, I have been gearing up for tonight's big GOP debate by suggesting criminal justice reform topics that I think should be a significant part of the conversation among all serious candidates for President. Here I want to turn to developing a few (pointed?) questions on these topics that might be asked of all the GOP candidates during tonight's planned festivities.
I seriously doubt the FoxNews moderators asking questions tonight regularly turn to this blog for help on how they do their jobs. But I am at least hopeful that a range of folks in social media might help ensure the mainstream media gives sufficient attention to crime and punishment topics throughout the 2016 election season. With that aspiration in mind, here are some questions I would like to see asked:
On prison policies: "The United States has 5% of the world's population but nearly 25% of the world's prisoners. Why do you think this is so, and do you think this is a national problem that a President should be trying to address?"
On state marijuana reform: "The decision by Colorado voters to legalize marijuana for adults has helped create tens of thousands of new jobs and considerable new tax revenues. President Obama's Justice Department has seemingly adopted a hands off approach concerning these sorts of state-level marijuana reforms. Would you continue or change this approach and why?"
On clemency practices: "For most of his presidency, Barack Obama was criticized for pardoning more turkeys than people. But now, after instructed his Justice Department to work harder identify good clemency candidates, his admininstration has hinted he could ultimately reduce federal prison terms for hundreds of non-violent drug offenders. What approach might you take as President in the exercise of your constitutional clemency powers?"
From Bill Otis via comments at Crime & Consequences: "Which more nearly reflects your view: That, as Attorney General Holder and some Republicans have said, we have too many people in prison for too long; or that we haven't yet done enough to keep criminals off the street?"
Of course, I welcome additional suggested questions via the comments to this post. And I am especially hopeful all folks seriously interested in serious discussion of criminal justice reform will join me in trying to ensure these kinds of issues get their due tonight and in all future debates throughout the 2016 campaign.
A few recent related posts:
- Hoping GOP debates take up criminal justice reforms (including clemency and marijuana policy)
- "Let's hear from the presidential candidates on clemency reform"
- Shouldn't front-runner Donald Trump be asked about drug war and federal marijuana policies at GOP debate?
- Highlighting GOP leaders' notable new essays on criminal justice reform
- "On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"
- "2016: The Marijuana Election"
- First primary state poll indicating considerable support for marijuana reform
- "Why marijuana legalization is the rare issue that divides the 2016 Republican presidential field"
Is it now ungodly to oppose significant sentencing and prison reform?
The question in the title of this post is prompted by this notable recent Crux commentary authored by Jacob Lupfer headlined "There’s a truly religious consensus on prison reform." Here are excerpts:
In an era when most faith groups’ political priorities align predictably with the two major parties, it is refreshing to behold a truly diverse religious consensus on an issue....
The budget-busting prison-industrial complex was politically popular for a time, but in the past decade the pendulum has begun swinging the other way. Harsh sentences, particularly for nonviolent drug offenders, created unsustainable fiscal pressures. States simply cannot afford to house more prisoners and pay the salaries and benefits of employees to supervise and care for them.
Already, states are taking steps to spend less on “corrections.” Fiscal conservatives now view prisons as overly expensive, hugely inefficient, bloated bureaucracies. Yet Christians and other people of faith see problems, too.
America’s denominations and faith organizations are calling for reform. Our vast criminal justice system emphasizes punishment over rehabilitation, while our faith traditions preach redemption. Citing Isaiah 61, Jesus announced that his gospel would include “release for the captives” (Luke 4:18). It seems wrong for a Christian conscience to support needless incarceration.
Catholics were early leaders in promoting restorative justice, the idea that communities must help ex-offenders re-enter society in healthy and productive ways. The US Conference of Catholic Bishops issued a major pastoral statement in 2000 that placed criminal justice issues in the context of social ills, including family breakdown, violence, racial disparities and the perverse incentives of for-profit prisons.
Once a powerhouse in ecumenical Christian political influence, the National Council of Churches has reinvented itself as a smaller, more focused agency. Yet it has made mass incarceration its top advocacy priority. NCC President Jim Winkler has a provocative idea. “If churches want to see revival,” he told me last year, “they should pick up released prisoners and help reintegrate them into their communities.” Criminal justice reform is not just an issue. It is essential to the gospel: Redeemed sinners proclaiming mercy in the name of Jesus Christ....
Leaders from Catholic, mainline, and black Protestant traditions have been sounding this refrain for years. But the growing consensus among white evangelicals and Republican officeholders may finally make sentencing reform an urgent and truly bipartisan imperative. The National Association of Evangelicals, known to be more active on non-sex-related issues than other religious conservatives, has spoken strongly of the need for criminal justice reform....
Until recently, disparate groups have worked on the issue largely independently. That is changing. In 2014, Congress appointed a committee to study the feasibility of reform among federal prison populations, whose growth threatens other federal law enforcement and funding priorities. The committee is called the Charles Colson Task Force on Federal Corrections. Earlier this year, the task force sought input from faith leaders and saw unprecedented agreement across traditions and enthusiastic support for reform....
Sentencing and prison policy is more easily seen as a boring bureaucratic issue. Even though millions are incarcerated, most Americans know zero or one person in prison. Yet faith communities are adding urgency to the imperative for prison and sentencing reform, even as they remain divided on the death penalty (for now).
In the end, fiscal constraints will force changes in prisons and sentencing if moral concerns do not. It seems better to make these changes out of a warm-hearted, merciful impulse than through cold fiscal realities. The faith community can credibly speak with one voice on criminal justice reform, and that voice must be heard.
"Toe Tag Parole: To Live and Die on Yard A"
The title of this post is the title of this new documentary that premired on HBO this week. Based on the few clips I have so far had a chance to watch, it looks like a valuable contribution to the broad on-going policy and constitutional debate over LWOP. Here is the film's synopsis via its HBO website:
America is the most punitive nation in the world, handing out historically harsh sentences that largely dispense with the concept of rehabilitation. Alan and Susan Raymond (Oscar® and Emmy® winners for HBO’s “I Am a Promise: The Children of Stanton Elementary School”) explore the reality of “the other death penalty” in TOE TAG PAROLE: TO LIVE AND DIE ON YARD A.
Featuring exclusive, unprecedented access, TOE TAG PAROLE: TO LIVE AND DIE ON YARD A was shot entirely at California State Prison, Los Angeles County, a maximum-security facility in the Mojave Desert.
In 2000, a California State Prison inmate serving Life Without Parole (LWOP) approached the warden to request a dedicated yard for men serving life sentences that would break the code of violence dominating prison life. The California Department of Corrections and Rehabilitation (CDCR) subsequently transformed Yard A at California State Prison into The Progressive Programming Facility, which inmates call The Honor Yard. The only one of its kind in the United States, this experimental prison yard is free of violence, racial tensions, gang activity and illegal drug and alcohol use.
TOE TAG PAROLE: TO LIVE AND DIE ON YARD A focuses on the 600 men living at The Progressive Programming Facility, who seek self-improvement and spiritual growth through education, art and music therapy, religious services and participation in peer-group sessions.
Although a 2012 U.S. Supreme Court ruling found mandatory sentencing of juveniles to Life Without the Possibility of Parole unconstitutional, those previously convicted still have to serve their sentences in some states. The film features interviews with three of the inmates – sentenced to life at ages 14, 16 and 17 – who describe growing up within the prison walls.
Ken Hartman, who beat a man to death at age 19 while drunk, and has been in prison for 36 years, says, “There’s a progression that these things go through. People used to be stoned to death and then they were shot and then they were hung, they were electrocuted. Each step along the way always the argument is made that this is a better kind of death penalty. I’m sentenced to Life Without the Possibility of Parole. It’s not better than the death sentence, because it is the death sentence.” As the men of The Honor Yard say, “They will get out when they get their Toe Tag Parole,” meaning death by incarceration.
Wednesday, August 5, 2015
Gearing up for the Ninth Circuit's consideration of the arbitrariness of California's capital punishment system
Reader may recall that a little over a year ago, as first reported in this July 2014 post, US District Judge Cormac Carney ruled in Jones v. Chappell (now Jones v. Davis) that California's administration of capital punishment was unconstitutional. That ruling was based on the judge's conclusion that California operated a death penalty "system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed [, and which consequently] serves no penological purpose." This Jones ruling was appealed by the state of California to the Ninth Circuit, and the Ninth Circuit is finally scheduled to hear oral argument in the case on the last day of this month.
As detailed in some prior posts below, a number of factors make Jones an interesting ruling that go beyond its basic significance of deeming unconstitutional the state capital system with the most persons serving time on death row. And, as revealed via this Ninth Circuit webpage, various amici have submitted briefs to the Ninth Circuit urging reversal or affirmance of the Jones decision.
This preview post now (with perhaps more to follow) was by this new Washington Post piece, headlined "The death penalty is about to go on trial in California. Here’s why it might lose." The piece is authored by Prof Frank Baumgartner, and here are excerpts:
Carney argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional. As Carney wrote in his California decision, no rational jury or legislature would design a system that functions as the system actually works. But, he argued, we must evaluate the system we do have, not the one we might prefer to have....
Supporters of the death penalty argue that Carney overstepped with his sweeping decision throwing out the entire California death penalty. Oral arguments in the Ninth Circuit Court of Appeals will begin at the end of this month. California certainly was at the low end of the distribution of “efficiency” in carrying out its death sentences.... Out of more than 900 death sentences, the state has carried out just 13 executions. It stands as one of the few states, along with Pennsylvania, that has large numbers of death sentences that result in very few executions.
Prior related posts:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
- California Attorney General seeking appeal in Jones v. Chappell capital case
"Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement"
The title of this post is the title of this notable new paper available via SSRN authored by Donna Coker and Ahjane Macquoid. Here is the abstract:
We demonstrate that among the many negative results of hyper-incarceration is the risk of increased domestic violence. In Part I, we describe the growth of hyper-incarceration and its racial, class, and gender disparate character. This growth in criminalization has been fueled by racist ideologies and is part of a larger neoliberal project that also includes disinvestment in communities, diminishment of the welfare state, and harsh criminalization of immigration policy. We place the dominant crime-centered approach to domestic violence in this larger neoliberal context.
The well-documented harms of hyper-incarceration -- collateral consequences that limit the economic and civic opportunities of those with criminal convictions; the emotional and economic harms to families of incarcerated parents; prison trauma and the deepening of destructive masculinities; the weakening of a community’s social structure, economic viability, and political clout -- produce harms that research demonstrates are tied to increased risks for the occurrence of domestic violence.
Anti-domestic violence advocates have responded to neoliberal anti-poor and anti-immigrant policies with two strategies: exceptionalizing domestic violence victims and expanding the reach of VAWA. These strategies are likely to become less tenable in the current political climate. We argue for a more inclusive political alignment of anti-domestic violence organizations with social justice organizations that addresses the larger structural inequalities that fuel violence. A key part of that alignment is opposition to hyper-incarceration.
Shouldn't front-runner Donald Trump be asked about drug war and federal marijuana policies at GOP debate?
Now that all the GOP polls show a significant number of Republican voters are taking Donald Trump's candidacy seriously, I think it would be especially valuable at tomorrow's big GOP debate for candidate Trump to be asked some seriously hard questions about federal laws and policies. Back in June, I had this pose on my marijuana reform blog highlighting that Trump had once suggested full legalization would be the only way to "win" the drug war, and I wondered aloud "Just what is Donald Trump's position now on modern marijuana reforms (and the modern drug war)?". Especially now that Trump is, according to the polls, the GOP front-runner, I think this would be an especially good issue to bring up with him.
Notably, a few media outlets have just recently picked up on Trump's not-so-clear and not-at-all-consistent statements about federal drug policy:
At the Daily Beast here, "Donald Trump: Legalize ALL the Drugs"
At Westwood here, "Donald Trump on 'Big Problems' with CO Pot Laws, Flip-flop on Legalizing Drugs."
As I have explained in a few prior posts both here and at Marijuana Law, Policy & Reform (some of which I have linked below), I think there are lots of good reasons to ask all the GOP candidates lots of good questions about lots of different criminal justice reform issues. But, especially in light of Trump's prior comments and what at times seems to be his libertarian-leaning, less-government-regulation, pro-jobs economic messaging, I would be especially interested now to hear what he thinks about some of the positive economic development news emerging from Colorado and other jurisdictions in conjunction libertarian-leaning, less-government-regulation marijuana and related drug war reforms.
A few recent related posts:
- Just what is Donald Trump's position now on modern marijuana reforms (and the modern drug war)?
- Hoping GOP debates take up criminal justice reforms (including clemency and marijuana policy)
- "Let's hear from the presidential candidates on clemency reform"
- Highlighting GOP leaders' notable new essays on criminal justice reform
- "On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"
- "2016: The Marijuana Election"
- First primary state poll indicating considerable support for marijuana reform
- "Why marijuana legalization is the rare issue that divides the 2016 Republican presidential field"
Latest tea leaves concerning Senator Grassley's coming sentencing reform bill
This new Wall Street Journal piece, headlined "Senator Holds Key to Sentencing Changes," provides a few more juicy details about what we might expect to emerge from the sentencing reform work of the critical chair of the Senate Judiciary Committee, Charles Grassley. Here are the excerpts that most caught my eye:
Now, as lawmakers in both parties and both chambers of Congress show greater interest in easing policies blamed for prison crowding, Mr. Grassley is presiding over final negotiations of a group he tasked with integrating assorted criminal justice proposals into a single package. Mr. Grassley, a four-decade veteran of Congress, said he plans to unveil a bill after Labor Day.
The most likely outcome of the talks, according to aides and lawmakers involved in the negotiations, is legislation that would combine programs to reduce recidivism and create more opportunities for early release with provisions giving judges some discretion to sentence below the mandatory minimum for certain drug defendants. “I think it’s fair to say there are going to be a lot less people that are going to have mandatory minimums apply, but it’s not going to be this across-the-board cut,” Mr. Grassley said, warning that drastic reductions in sentences would weaken penalties for serious offenders.
Mr. Grassley’s position — which fellow committee members say has evolved since March, when he warned of a “leniency industrial complex” — reflects a readjustment on criminal justice among many conservatives, who increasingly are joining Democrats in calling for legislation aimed at reducing mass incarceration....
Among Republicans, the party’s libertarian wing was first to back sentencing overhaul, and more mainstream Republicans have followed.... Mr. Grassley, once seen as a chief roadblock to change, is in a position to convert that momentum into a bill committee members say could clear the Senate this year with bipartisan support now rare in a deeply divided Congress.
But it isn’t clear whether committee members with fervent objections to mandatory minimum sentences will sign onto a proposal shorn of the more sweeping changes they envision. More substantial reductions were embraced in a bill that cleared the committee last year but never made it to the floor. Its sponsors, Sens. Richard Durbin (D., Ill.) and Mike Lee (R., Utah), this year reintroduced the bill, which would halve mandatory minimum sentences for some nonviolent drug crimes and give judges more flexibility to hand down sentences below the mandatory minimum.
“He’s offering a different approach than we started with,” Mr. Durbin said of the agreement Mr. Grassley is brokering. “It’s a much different approach, and it’s a harder approach.” Still, he said, he is encouraged that Mr. Grassley would entertain any legislation revising sentencing law. “Let me tell you, he was not even at the table initially, and now he’s at the table,” Mr. Durbin said.
A compromise bill may still encounter conservative resistance. One of the committee’s more cautionary voices is that of Sen. Jeff Sessions (R., Ala.), who said tough criminal code has been at the heart of a reduction in violent crime.
On the other side of the Capitol, Mr. Boehner has endorsed a bill by Reps. Jim Sensenbrenner (R., Wis.) and Bobby Scott (D., Va.) that would loosen some sentencing requirements, while also addressing probation and recidivism....
Some in Iowa have sought to hold Mr. Grassley to account for the ballooning prison population. A state report released last year estimated that Iowa’s prison population could swell 39% over the next decade. In May of this year, the Des Moines Register, Iowa’s largest newspaper, urged Mr. Grassley not to stand in the way of changes to federal sentencing laws. Home on a recent weekend, Mr. Grassley faced questions about criminal justice at two town meetings — a surprise, he said, as it marked the first time this year constituents had raised the topic. “They were happy that it looked like we were going to get a bill,” he said.
As I explained in recent prior posts here and here reporting on the latest Grassley reform forecast, I am fearful that politics and process may continue to impede any significant federal sentencing reform from getting done before the end of the year. Because it would appear that Senator Grassley has now invested considerably in developing a reform bill to his liking and given that he is a critical player for any reform proposals moving forward, I sincerely hope that the bill he unveils in September is perceived to be "good enough" to garner the support needed from all quarters to have a real chance at becoming law.
Some prior related posts:
- Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
- Latest reform news means still more waiting for those eager for federal sentencing reform
- Senator Grassley again expresses interest in talking about federal criminal justice reform
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Senator Grassley yet again says he is open to some federal sentencing reforms
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Senators respond to NY Times criticisms of their sentencing work
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Tuesday, August 4, 2015
Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson
A helpful reader altered me to a significant post-Johnson ruling today by the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here). Price, which some ACCA prisoners may come to consider priceless, authorizes a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 to bring a new, successor 2255 motion based on the Johnson ruling. Here are a few key passages from this notable ruling:
Price now asks this court to authorize the district court to entertain a successive collateral attack, 28 U.S.C. § 2244(b)(3), in which he proposes to assert a claim under Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson holds that the imposition of an enhanced sentence under the residual clause of ACCA violates due process because the clause is too vague to provide adequate notice. Id. at 2557. We invited the government to respond, and it has done so. We now conclude, consistently with the government’s position, that Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions....
Johnson, we conclude, announced a new substantive rule. In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited “a certain category of punishment for a class of defendants because of their status.” Saffle, 494 U.S. at 494. A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.” Summerlin, 542 U.S. at 352. There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review. Because Price has made a prima facie showing that he may be entitled to sentencing relief under Johnson, we GRANT Price’s application and AUTHORIZE the district court to consider a successive collateral attack presenting this claim.
We add a cautionary note in closing. Our review of Price’s substantive claim is necessarily preliminary, and as we just noted, our holding is limited to the conclusion that Price has made a prima facie showing of a tenable claim under Johnson. The district court will have the opportunity to examine the claim in more detail as the case proceeds. That court is authorized under § 2244(b)(4) to dismiss any claim that it concludes upon closer examination does not satisfy the criteria for authorization. The judge is likely to be familiar with the case (or to become familiar easily) because § 2255 motions must be filed in the applicant’s sentencing court, which has access to the criminal record and familiarity with the case. Our conclusions are tentative largely because of the strict time constraints under which we must review these applications. Tyler, 533 U.S. at 664 (“It is unlikely that a court of appeals could make such a determination in the allotted time [30 days] if it had to do more than simply rely on Supreme Court holdings.”). For example, we do not know whether Price has other qualifying convictions that were not considered at sentencing because, at that time, the three on which the court relied were sufficient. If he is successful in vacating his sentence under Johnson, the parties will be free to argue this and any other pertinent questions on resentencing.
Urging Prez Obama to appoint a "new, visionary Bureau of Prisons head"
Three notable law professors, Robert Ferguson, Judith Resnik and Margo Schlanger, have come together to make this effective pitch in the Washington Post for Prez Obama to make one key appointment in his effort to reform the federal criminal justice system. The piece is headlined "With one decision, Obama and Lynch could reshape the criminal justice system: The President needs to appoint a new, visionary Bureau of Prisons head," and here are excerpts:
The current director of the Federal Bureau of Prisons recently announced his retirement. The job is not Senate-confirmed (though Congress can play a role; on Tuesday, the Senate Committee on Homeland Security and Governmental Affairs will be holding a hearing on the issue). Instead, Obama’s Attorney General Loretta Lynch will choose the BOP’s ninth head since its founding in 1930.
The decision matters a lot. The BOP’s director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation’s benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.
Since Bennett’s era, the BOP’s leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better....
The BOP also has many available tools and a good deal of discretion to lower its prison population, but it has used those opportunities far too sparingly. The BOP does not place all eligible prisoners in residential treatment centers (halfway houses) at the earliest available dates, nor does the BOP use compassionate release — when the prisoner or a member of his or her family is dying — and other aspects of the 2007 Second Chance Act as much as it could. Using halfway houses more would put prisoners closer to home, where they can maintain ties to their families and communities and can gain avenues to employment. Given endemic racial and other disparities in our criminal justice system, these lost opportunities have a particularly harmful impact on poor minority urban communities.
The result of these many decisions, along with unduly harsh federal sentences which Congress is currently considering fixing, has been severe overcrowding. The BOP is 30 percent over capacity, which makes keeping staff and prisoners safe significantly more difficult. With congestion comes risks of violence, and less access to services such as jobs and programs. And as prison populations age, the costs of medical care go up.
We know the BOP can do better, because many state correctional systems are making a variety of improvements in their approaches. State prison systems have reduced the population of those in isolation, created “gender-responsive” programming to suit the histories and challenges of women and men in prison, offered new work programs and improved mental health services. For example, Colorado, Maine and Washington have used careful analyses to substantially reduce the number of prisoners in solitary and shifted the treatment of those who remain, putting them back into structured and regular contact with other people.
When searching for the BOP’s ninth director, the president and attorney general can look to a field of experienced innovators with demonstrated commitments to reform — decarceration, improved conditions of confinement, racial justice and gender equity. The president holds the prison door keys for federal prisoners whose sentences he commutes. His administration’s choice for the new head of the BOP is critical to reform for those remaining inside.
"Drone drops drugs, tobacco in Mansfield prison yard, spurs fight"
The title of this post is the headline of this new article from my own Columbus Dispatch. Here are the (serious and amusing) details:
A drone deposited a package containing drugs and tobacco at the Mansfield Correctional Institution last week, sparking a fight among inmates in recreation yards. The State Highway Patrol is investigating the incident in a bid to determine who flew the drone over the prison and for whom the package was intended.
The drone came buzzing over the prison about 2:30 p.m. on Wednesday, although prison officials were unaware of its presence until video from surveillance cameras was reviewed after the brawl among inmates. Prison workers recovered the drone’s deposit, which contained 5 ounces of tobacco, 2.3 ounces of marijuana and 0.2 of an ounce of heroin, according to a report. If half pure, the heroin amounted to about 140 individual doses.
State prisons have encountered drones previously, said Department of Rehabilitation and Correction spokeswoman JoEllen Smith. She could not immediately provide details on the prior flyovers. "Our agency’s top security administrators are taking a broad approach to increase awareness and detection of unmanned aerial systems," Smith said....
During the scuffle, the package was thrown over a fence from the north recreation yard to the south yard, the report said. A sweep of the area found the package hidden in the equipment room of the south recreation yard. Officers also searched roofs and other areas for any other packages, but found nothing.
Corrections officers used pepper spray to douse the fighting and about 200 prisoners from both the north and south recreation yards were carefully searched before being returned to their cells. Nine inmates involved in the scramble for the package were placed in solitary confinement. There were no injuries to prisoners or prison employees. The close-security prison contains about 2,700 inmates.
Prior related post:
AG Lynch and Secretary Duncan make pitch for Pell Grant pilot program for federal prisoners
Attorney General Loretta Lynch and Secretary of Education Arne Duncan have this notable new USA Today op-ed under the full headline "To cut crime, turn jailbirds into bookworms: We need a prison to productivity pipeline." Here are excerpts:
Few interventions have been shown to reduce recidivism and prepare people in prison to lead law-abiding, productive lives like access to quality postsecondary education and training. The benefits of investing in these opportunities, which also include improved employment outcomes, extend to the individual and to society. In a study funded by the Justice Department’s Bureau of Justice Assistance, RAND Corporation estimated that incarcerated individuals who participate in correctional education are 43% less likely to return to prison within three years. And for every dollar invested in correctional education programs, five dollars are saved on re-incarceration costs. A recent report from the President’s Council on Economic Advisors notes the annual cost of incarceration for a single juvenile is over $100,000 — almost twice as high as tuition, room and board and fees at the most expensive college in the country and nearly 100 times as expensive as a year of intensive mentoring.
Nearly every person behind bars will one day leave prison — approximately 700,000 annually. Setting these Americans up for success is smart economics and a critically important investment in our future.
Unfortunately, for many incarcerated individuals, this type of life-changing opportunity is unavailable. In 1994, Congress amended the Higher Education Act to ban incarcerated individuals in federal and state penal institutions from accessing Pell Grants, which could be used to help qualified inmates pay for college classes or training. This ban was passed despite the fact that higher education has been shown to reduce recidivism and despite the fact that incarcerated students made up less than 1% of all Pell Grant recipients.
The Obama administration has taken an important step toward helping people in prison contribute to the economy, transition back into their communities and stay out of the justice system after they reenter society. The Department of Education announced a new Pell Grant Experimental Site program that will allow a limited number of incarcerated individuals to be eligible to receive Pell Grants to pay for education and training programs from colleges and universities. The Department of Justice is providing technical assistance to the correctional facilities under the pilot program. We will test how restoring Pell Grant eligibility could affect educational and other outcomes. This pilot will not prevent any eligible Pell recipient from receiving a grant. What we learn will inform our efforts — and the efforts of states and localities — moving forward in this area....
By preparing these learners to achieve their academic and career goals, we strengthen the families and communities that depend on their success. And that is fundamentally good for America.
"Should prison sentences be based on crimes that haven’t been committed yet?"
The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing. The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:
Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.
Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science. The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.
But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars....
[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.
There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.
The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...
The core questions around risk assessment aren’t about data. They are about what the goals of criminal justice reforms should be. Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities. Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals. But once they enter the real world, there are usually trade-offs.
August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)
Monday, August 3, 2015
US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act
As reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:
Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”
To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:
• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;
• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;
• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,
• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.
The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.
August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Two distinct notable tales of crimes and punishment via the Grey Lady
The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment:
"Let's hear from the presidential candidates on clemency reform"
The title of this post is the headline of this timely new op-ed authored by Rachel Barkow and Mark Osler. Here are excerpts:
On Thursday in Cleveland, Fox News will host the first substantive presidential debate. The moderators will undoubtedly pepper 10 Republican candidates with questions about health care, government spending, foreign affairs and immigration.
For once, they should also ask the participants what they would do with one of the most powerful tools given to the chief executive by the United States Constitution -- the pardon power, which vests the president with the unilateral and unchecked authority to reduce sentences of individuals who are currently incarcerated and clear the records of those who are already done serving their sentences.
Unfortunately, we usually pay attention to clemency only after it has been used in a controversial way. When Bill Clinton pardoned Marc Rich, we suddenly cared about clemency. When George W. Bush commuted the sentence of (but declined to pardon) Scooter Libby, people on both sides of the issue were upset. And no one has forgotten the Nixon pardon.
But the framers intended clemency to perform a systematic function in the constitutional system of checking overbroad laws and correcting injustices in individual cases, and that requires foresight, principles of action, and attention to structure. All of the modern presidents have failed to fulfill the framers' vision. Yet we never ask candidates how they would use this enormous power before they enter office — we just act surprised when they use it.
This is the right time to change that dynamic. President Barack Obama has announced an intention (so far unrealized) to use clemency aggressively to address the over-incarceration of narcotics defendants, raising the profile of this issue. That project has also brought to the surface both underlying policy issues and an unwieldy consideration process that is plagued with as many as seven levels of review.
And given the increasing bipartisan support to address mass incarceration, it is an opening to see how the candidates view the president's role in dealing with that issue. At a Republican debate, it opens the door for the candidates to critique the Obama administration's approach and to reveal what they would do to change what past presidents agree is an inefficient and ineffectual clemency bureaucracy. Republicans often value efficiency and cost savings, and a properly functioning clemency process offers an opportunity for both....
Whatever the answer, it will tell us a great deal about them. We will learn what kind of vision, if any, they have for changing entrenched and failed bureaucracies. And we will learn how seriously they view the problem of mass incarceration and criminal justice supervision in this country.
Our plea to the moderators of this and future debates (Democrat and Republican) is thus a simple one: For the first time, ask the candidates how they would use clemency, that great unchecked power of the presidency. They will certainly ask those who seek to be president how they would use the terrible swift sword of war; they should also be bold in asking the candidates how they would use this powerful tool of mercy in an age of mass incarceration and punitiveness.
Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP
A Fourth Circuit panel on Friday issued a very intricate and thoughtful set of opinions in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here). The start of the majority opinion provides this effective overview of the issues in Surratt:
In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment. We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.
Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion. Surratt’s request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received. Surratt maintained that this difference entitled him to be resentenced. But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions. See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6.
In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief. As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) -- also called the “savings clause” -- applies. The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.
Surratt now appeals from the judgment of the district court. We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.
The end of the dissenting opinion in Surratt provides this alternative perspective on the case and its disposition by the majority:
I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ. I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution. Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison -- against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custodiet ipsos custodies? Who will guard the guards themselves?
It is within our power to do more than simply leave Surratt to the mercy of the executive branch. To hope for the right outcome in another’s hands perhaps is noble. But only when we actually do the right thing can we be just. I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison. I must dissent.
Sunday, August 2, 2015
Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:
Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.
This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.
The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.
Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.
Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.
While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....
Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.
SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.
Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.
Prior related posts:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
Prez candidate O'Malley joins chorus of leaders advocating criminal justice reform
This USA Today article reports on the latest presidential candidate's latest discussion of the need for criminal justice reform. The piece is headlined "O'Malley pledges criminal justice reform," and here are the details:
Democratic presidential candidate Martin O’Malley stressed his urban affairs experience as Baltimore mayor as he pledged Friday to improve race relations and the criminal justice system. The nation has moved toward racial justice, “but we are not there yet,” the former Maryland governor told a National Urban League presidential forum, citing recent killings and abuse involving police officers. “In our country, there is no such thing as a spare American,” O’Malley said.
While other candidates have talked about criminal justice reform, O’Malley said, “I have actually done it.” In outlining a criminal justice agenda, O’Malley pledged to change sentencing laws so that punishments fit crimes and to end racial disparities in sentencing, including crimes involving crack and powder cocaine. O’Malley, who is lagging far behind in Democratic polls, also called for an end to the death penalty.
Saturday, August 1, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
Latest reform news means still more waiting for those eager for federal sentencing reform
This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:
Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.
The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....
Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.
But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....
The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.
And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.
Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.
As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law. (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.) I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."
Friday, July 31, 2015
Politics of pot continuing to heat up (and partially chronicled at Marijuana Law, Policy & Reform
A new Politico article suggests that Congress is in the midst of a "summer fling With marijuana," and that suggesion only reinforces my view that marijuana should definitely be a topic raised during next week's big GOP debate in Cleveland. And any and everyone interested in the modern politics of modern marijuana reform — which is burning hot at the local, tribal, state and international levels as well as in Congress — should be sure to check out my efforts to keep on top of some of the top stories at Marijuana Law, Policy & Reform. Here are links to some recent posts of note from MLP&R:
ABA Journal spotlights continued child porn federal sentencing challenges
This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures. Here is an excerpt:
Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.
According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.
The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.
If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....
One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....
At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.
“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”
To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton. A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online. The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.
“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”
Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case. Here are the details:
Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....
Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits. Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.” Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.
In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court. A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009. The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses. It prompted one of the largest food recalls in U.S. history.
Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....
“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...
“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....
Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.
Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.
Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.
Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.
Thursday, July 30, 2015
What accounts for decline in federal white-collar prosecutions (and should we care)?
The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:
Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.
The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.
During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.
The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).
The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.
White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Recent capital developments prompts query: "Is the death penalty dead in Washington?"
The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state. Here are the details:
Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.
"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.
Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.
"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."
"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."
Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.
Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley. The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:
Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.
Grassley has moved on the issue of mandatory minimums. While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way. "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.
Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing. Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.
On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch. "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.
At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve. A narrow subset of nonviolent drug offenders will be.
"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity. We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"
Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act.... The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success. Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.
Even once the new bill is introduced, however, there will still be changes made to it. And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.
Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes. Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol. The floor may be another place for senators to add more stringent reductions in mandatory minimums.
Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year. I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.