Wednesday, April 13, 2016

Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill

In this post over the weekend, titled "The many challenge of a fully nuanced understanding the Clintons, crime, punishment and the 1994 Crime Bill," I highlighted nearly a dozen articles and commentary to stress that there are many nuances essential to a full understanding of just what the 1994 Crime Bill did (and did not) achieve, and just what has been the role and record of former Prez Bill Clinton (and Prez candidate Hillary Clinton) on criminal justice reforms past and present. And because these stories are so nuanced, and I glad we are continuing to see lots of worthy commentary on these fronts, such as these recent pieces from various sources:

I am very pleased to see this important 20-year-old story is getting some useful attention now as part of the 2016 campaign.  But, for a variety of reasons, I hope attention soon turns to the more recent (very mixed) records of Presidents George W. Bush and Barack Obama on crime and punishment with focused questions to all the remaining 2016 candidates about whether, why and how they will be eager to continue or to change various modern federal criminal justice policies and practices.

April 13, 2016 in Campaign 2016 and sentencing issues, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, April 12, 2016

Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP

The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court.  Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis: 

Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole.  Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole.  On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.

Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense.  We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered.  We also consider, and reject, Pete’s other challenges to his resentencing....

In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before.  Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.”  We disagree with the district court as to all three aspects of its reasoning....

When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives.  At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade.  An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16.  Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733.  Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.

More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D).  Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.

April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

"Accounting for Prosecutors"

The title of this post is the title of this interesting looking new paper by Daniel Richman now available via SSRN. Here is the abstract:

What role should prosecutors play in promoting citizenship within a liberal democracy?  And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy — as opposed to those made by other criminal justice institutions — is a challenge.  Holding others — not just citizens but other institutions – to account is at the core of what prosecutors do.  As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship.  They also can can promote police compliance with legal and democratic norms.  Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy.

After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account.  Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.

April 12, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Interesting alternative sentencing being used in Thailand for drunk drivers

Regular readers know that I have long viewed drunk driving as a much-too-common, potentially-deadly offense that I fear is not regularly punished appropriately to best reduce recidivism and the extraordinary harms to public safety and property that this offense too often produces.  Consequently, I was intrigued to see this new article about a new kind of sentencing being tried for this offense in the Land of Smiles.  The piece is headlined "Thai drunk drivers to do morgue work in 'shock sentencing' strategy," and here are the details:

Drunk-drivers in Thailand will be sentenced to community service in morgues in an attempt to combat the world’s second highest road death rate. The plan to confront offenders with the risks of their actions in starkly morbid fashion was unveiled as the country embarked on its most dangerous time on the roads – the Thai new year holidays.

In a country with a notoriously poor road safety record, the ruling junta hopes the initiative will drive home the message that drink driving and reckless driving is lethal. "Traffic offenders who are found guilty by courts will be sent to do public service work at morgues in hospitals," said Police Col Kriangdej Jantarawong, deputy director of the Special Task Planning Division.

"It is a strategy used to make traffic offenders afraid of driving recklessly and driving while they are drunk because they could end up in the same condition. It is aimed to be a deterrent, a way to discourage people."

The “shock sentencing” strategy was approved by the Cabinet as the kingdom prepared for the extended Songkran new year festivities that formally begin on Wednesday. There is much higher traffic than normal as millions return to their home villages, while the festivities are also marked by heavy consumption of alcohol, including by drivers. Nominal helmet laws for motorcyclists are widely flouted.

The combination means the celebrations are accompanied by carnage on the roads each year. The government’s safety campaign bluntly refers to the holiday week as “The Seven Days of Danger”. The death toll has been increasing in recent years, despite government crackdowns and awareness campaigns. The authorities have also said that they will immediately impound the cars of motorists driving under the influence.

"We originally had community services at hospital wards (for offenders)," said Nontajit Netpukkana, a senior official at the department of probation. "But we think the intensity that comes from working in a morgue will help give those doing community service a clearer picture of what happens after accidents caused by drink driving.”

April 12, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Anyone eager to predict when (or if) Ohio is likely to carry out its next execution?

The question in the title of this post is prompted by this new local article headlined "2016 is the second year without executions in Ohio. But death penalty foes won't claim victory yet." Here are excerpts:

This year will be the second in a row in which Ohio will not conduct any executions. Ronald Phillips, convicted in a Summit County murder, is scheduled to die Jan. 12, 2017. But until the state can procure more of the drugs, or changes the drugs it uses for lethal injection or changes its form of execution, there won't be more executions in Ohio.

"We're at a place where for progress to be made, if they're not going to fix it then they're going to have to end it," said Abraham Bonowitz, a spokesman for Ohioans to Stop Executions. The group, along with 23 partners, plan to hold a series of events Tuesday at the Ohio Statehouse to lobby for their cause. There is a sense opinions are changing as the state wrestles with how to carry out executions and as more people become critical of the years – sometimes decades – required to carry out the sentence....

Ohio has had trouble getting drugs to use for lethal injections in great part because pharmaceutical companies don't want their medical products used for killing people. Two years ago European pharmaceutical companies blocked further sales on moral and legal grounds. Ohio has looked for other options, but all have obstacles.

First it turned to a previously untried lethal-injection cocktail using drugs commonly found in hospitals.  But the only time it was used became controversial because Dennis McGuire took 25 minutes to die.  Other states tried the same drugs with more grisly results.

After that, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. But so far, none have been willing. The state then looked to buy drugs from overseas, only to be told by the federal government that it would be illegal....

A bi-partisan bill that would abolish the death penalty in Ohio is pending in the Ohio House. It was introduced last July by Democratic Rep. Nickie Antonio of Lakewood and Republican Rep. Niraj Antani of Miamisburg.

Other states, too, have considered ending executions. The Republican-dominated Nebraska legislature overrode a veto of that state's Republican governor last year on legislation that halted executions. Voters have since put in initiative on the November ballot to restore the death penalty....

Of the 26 people on Ohio's death row with execution dates in 2017 into 2019, 17 have been on death row for at least 20 years. Five have been on death row for more than 30 years. The long period involved in the appeals process just stalls a victim's family from finding closure, Bonowitz said.

"It's also become pretty clear that the method of execution has become so challenging it calls into question whether its worth keeping the death penalty," he said.

April 12, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

Taking a close look at the prosecutor dealing with Miller and Montgomery on the ground in Philly

Daniel Denvir has this intriguing piece in Salon about the resentencing of juvenile murderers in the City of Brotherly Love and Sisterly Affection. The full headline highlights its themes: "The unconstitutional outrage of juvenile life sentences: Why Philadelphia will be a case study for this criminal-justice reform: The city is faced with deciding what to do about 300 now-unconstitutional juvenile life sentences." Here is how it starts:

Children convicted of committing murder on Philadelphia’s violent streets long faced the prospect of receiving the harshest sentence short of death: life without parole. Today, the city has more juvenile offenders locked up for life than any other. It has been a grim and predictable cycle: Young black men mourned at premature funerals and their killers packed into state prisons with only the narrowest hope of ever leaving. And then the tough-on-crime pendulum began to swing back.

In 2012, the U.S. Supreme Court ruled that mandatory life without parole for juveniles was unconstitutional, and in a January decision they made that ruling retroactive. And so Philadelphia District Attorney Seth Williams has roughly 300 big decisions to make: How long will he seek to imprison the onetime juveniles, many now much older, who until recently were set to die behind bars?

States responded to the 2012 Miller v. Alabama decision in a hodgepodge manner, including by abolishing juvenile life without parole entirely. In Pennsylvania, however, then-Gov. Tom Corbett signed a law that angered reform advocates for its harshness, changing the sentence for first-degree murder to 35 years to life for older juveniles, and 25 to life for younger ones. Those convicted of second-degree murder now face sentences of 20 or 30 years to life.

Critically, the law did not make the new sentences retroactive, leaving hundreds of Pennsylvania juvenile lifers in limbo. The Court’s January decision in Montgomery v. Louisiana means that prosecutors and judges throughout Pennsylvania will soon face a deluge of prisoners asking to be re-sentenced. In Philadelphia, advocates are concerned that Williams, who has taken a tough line in the past, will fight to keep many behind bars for a long time.

“The District Attorney has a pretty stark choice,” emails Marc Bookman, director of the Atlantic Center for Capital Representation. “He can either follow the very obvious trend away from sentencing juveniles to life without parole sentences, or he can swim against the tide and against the dictates of the Supreme Court and continue to seek such sentences.”

Williams’ office, which declined to comment for this story, must navigate the gap between the Supreme Court and the current state law. It’s unclear how he will proceed. The Supreme Court only barred mandatory life without parole sentences, so he could try to keep some locked up. The Court did make it clear, however, that life without parole sentences should only be applied in rare cases where an offender is “irreparably corrupted.”

Brad Bridge, a lead attorney at the Defender Association of Philadelphia, criticized Williams’ past opposition to making Miller retroactive and says that he should move quickly to resolve the cases of those who have been incarcerated the longest. “Based upon [these court rulings,] we now must re-sentence over 300 juvenile lifers in Philadelphia,” emails Bridge. “Given that over 100 of these juvenile lifers have been incarcerated for over 30 years, we should quickly resolve those cases immediately by agreeing to release those who have done well in prison. It is only by prompt resolution of 100, and maybe 200, of these cases that the resources of the judiciary, prosecutor and defense can be properly focused on the 100 cases that cannot be resolved by agreement.”

Bridge and the Juvenile Law Center, a leading critic of juvenile life without parole, have called for the prisoners to be re-sentenced on third-degree murder, carrying a sentence of 20 to 40 years. But Richard Long, executive director of the Pennsylvania District Attorneys Association, has argued that the harsher sentences meted out by the state’s new law should be applied.

Seth Williams is the association’s vice president, and last fall conveyed his opposition to re-sentencing, telling WHYY that the prisoners “aren’t kids in fifth grade doing these things… We’re talking about killings. Not someone who stole someone’s laptop. We’re talking about the loss of life. And us having to look into the eyes of victims’ families, who want something done.”

April 12, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 11, 2016

"The Battle Against Prison for Kids"

The title of this post is the headline of this new article from The Nation. The piece's subtitle is "We’re feeding children into a system that breaks them," and here is how it gets started:

For as long as youth prisons have existed in the United States, so too has the pretense that there are no youth prisons. Early 19th-century reformers who sought to remove children from the harsh adult penal system established new institutions specifically for the detention of youths.  They didn’t call them prisons, but Houses of Refuge, dedicated to the discipline and reform of newly coined group, “juvenile delinquents.”  Founded with ostensibly laudable intent, the institutions were overcrowded fortresses, riddled with abuse, serving to institutionalize strict social control over poor and immigrant communities.  That is, they were prisons.

And so began the unending march of euphemisms, in which children’s prisons have been known by any other name — residential treatment facilities, youth camps, youth-development centers, to name a few — exposing juveniles to many the same cruelties and racial discriminations of the adult prison system. In the two centuries since its formal birth, the juvenile-justice system has changed radically, while youth prisons have hardly changed at all. It’s as if the clock on reform stopped in the turn-of-the-century Progressive Era and has only recently started shakily ticking again.

Last year, before the election spectacle swallowed the news cycle whole, juvenile-justice reform made headlines as a keystone in President Obama’s legacy-construction efforts.  Overdue political action from state houses has gained serious ground in removing youths from adult prisons.  On any given day, 10,000 juveniles are housed in adult facilities, where they are five times more likely to be sexually assaulted than in juvenile institutions (a monstrous statistic, especially considering the prevalence of sexual abuse in youth facilities).  The necessity of getting kids out of our shameful adult system cannot be overstated.  It’s a limited achievement, though.  And even as more and more youth prisons close, we must be vigilant against “alternatives” that press the same oppressive, discriminatory stigmas of criminality and delinquency onto kids outside prison walls.

April 11, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1)

New Orleans judge threatening to turn public defender funding crisis into a public safety problem

32This local article from the Big Easy reports on notable efforts by a local judge to make sure it is no longer easy for public officials to ignore the problem of inadequate funding of public defenders to represent indigent criminal defendants.  The article is headlined "New Orleans judge orders release of seven inmates charged with serious felonies because of lack of money for defense, but men will remain jailed pending an appeal," and here are the basic details:

In a potentially blockbuster ruling, an Orleans Parish judge on Friday ordered seven indigent inmates released from jail because of a lack of state money for attorneys to represent them amid a squeeze on public defense funding in New Orleans and across Louisiana.

However, Criminal District Court Judge Arthur Hunter stayed his order, which also included a suspension of the men’s prosecutions, pending an appeal from District Attorney Leon Cannizzaro’s office. Assistant District Attorney David Pipes told Hunter an appeal is coming, and Hunter gave him 10 days. The seven men will remain behind bars pending the outcome of that appeal.

All of them face serious felony charges — including murder, armed robbery and aggravated rape — and all have been deemed indigent. Most have spent more than a year behind bars, going months without legal help on their cases, attorneys said.

Hunter ruled that the lack of state funding for the seven men’s defense violated their Sixth Amendment rights and that the resulting uncertainty on when their cases might move forward warrants their release. “The defendants’ constitutional rights are not contingent on budget demands, waiting lists and the failure of the Legislature to adequately fund indigent defense,” Hunter wrote in his 11-page ruling, portions of which he read from the bench.

“We are now faced with a fundamental question, not only in New Orleans but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”

A spokesman for Cannizzaro’s office said the district attorney “believes that releasing defendants charged with serious acts of violence poses a clear and present danger to public safety, and he intends to appeal the ruling.” Spokesman Christopher Bowman added, “It appears that the judge’s ruling declares that a legislative act — namely the most recent budget — violates the Louisiana Constitution.”

Tulane Law School professor Pam Metzger, who is representing all seven in their bid for release, said she was “thrilled that the judge appreciates the extraordinary constitutional obligations of providing poor people with counsel and due process of law.” She said she was disappointed that Hunter stayed his ruling but that attorneys would continue pressing to free the men.

In addition to Metzger, each of the men has an attorney appointed by Hunter. But in his ruling, Hunter said the appointment of private attorneys without any state money available for early witness and defendant interviews, filing motions and strategizing “makes a mockery of the Sixth Amendment right to the effective assistance of counsel.”

Hunter was following directions laid out in a 2005 Louisiana Supreme Court decision on when judges can halt prosecutions because of a lack of adequate indigent defense funds. The court said a judge can stop a case “until he or she determines that appropriate funding is likely to be available.” The “absence of a date certain” when that money will come, Hunter found, also violates the right to due process guaranteed in the 14th Amendment to the U.S. Constitution, as well as the Louisiana Constitution’s edict for the Legislature to “provide for a uniform system for securing and compensating qualified counsel for indigents.”...

Chief Public Defender Derwyn Bunton’s office had turned away the seven cases, citing a severe budget shortfall, bloated workloads and the loss of several experienced attorneys in his office.

Hunter, who has taken drastic measures during past funding shortfalls at the Public Defenders Office — he ordered the release of several inmates after Hurricane Katrina — doled out the seven men’s cases to private attorneys, who promptly sought a halt to the prosecutions and the men’s release. They said they can’t do any work on the cases unless they get money to pay for investigators and other expenses.

Hunter’s ruling came after a series of hearings in his courtroom that began in November with testimony from Bunton and Jay Dixon, who heads the Louisiana Public Defender Board, among others. They testified that indigent defense in Louisiana is facing a crisis because of a system in which local offices are funded largely through fines and fees leveled on criminal defendants, mostly for traffic violations. Those revenues have slid steadily over the past several years, in some parishes more than others. All told, almost a dozen district public defenders across the state have instituted austerity programs.

In New Orleans, that has meant a hiring freeze since last summer and, beginning in January, a refusal by Bunton’s office to accept appointments in serious felony cases — now at 110 and counting — because of a lack of experienced attorneys to handle them, according to Bunton. “Obviously, the charges involved in these cases are really serious, so I do think folks should be concerned about public safety,” Bunton said Friday. “We wouldn’t need to be in this position if (the state) provided the resources that are necessary under the constitution. You can only prosecute as fast as you can defend, and if you can’t defend, you can’t prosecute.”...

The defenders’ funding troubles may be getting even worse. In Baton Rouge, lawmakers grappling with the state’s deep budget morass have threatened deep cuts in the $33 million in annual state funding that has supplemented local revenue, making up about a third of the overall funding for indigent defense across the state. The Louisiana Supreme Court has in the past endorsed a halt to prosecutions until adequate funding becomes available. But it has stopped short of ordering action by the Legislature.

At a recent hearing, Metzger described an “abject state of financial crisis. There is no money to fund these defenses. ... The cause of the delay rests entirely with the state. The Legislature has been on notice not simply for weeks or months or years but for decades.”

In a legal filing last week, however, Cannizzaro’s office described the private attorneys seeking to be relieved from the cases as bent on “nothing less than anarchy” by pressing for the defendants’ release and a halt to their prosecutions, while “hoping for a paycheck” at the expense of justice. “They are seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent,” Pipes wrote.

A statement from Mayor Mitch Landrieu called Hunter’s ruling “a miscarriage of justice on all sides” and urged the judge “for the sake of the victims and their families” to “reconsider putting alleged murderers back on the streets, like Darrian Franklin.”

“The state needs to live up to its obligation by fully funding the public defender, and the judge should continue to work on getting the State to appropriately fund its responsibilities,” the statement read.

April 11, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?

The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center  and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama.  The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.   

Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea.  (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.)  But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial.  Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.

Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial.  Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.

April 11, 2016 in Clemency and Pardons, Data on sentencing, Second Amendment issues | Permalink | Comments (5)

Sunday, April 10, 2016

Detailing the desuetude of the death penalty in Pennsylvania

This new local story, headlined "In Pa. and elsewhere, death penalty is dying a slow death," tells a capital tale that has grown old in the Keystone State. Here is how the article gets started:

The crime was horrific: LaQuanta Chapman fatally shot his teenage neighbor, then dismembered him with a chainsaw. The Chester County District Attorney's Office promised it would seek the death penalty — and it delivered.

Chapman was sent to death row in December 2012.  But he remains very much alive, and two weeks ago the state Supreme Court reversed his death sentence, citing prosecutorial error.  Chapman is just the latest example of a death-row inmate spared execution.

In fact, no one has been executed in Pennsylvania since Philadelphia torturer-murderer Gary Heidnik in 1999.  And he requested it.  He is one of only three prisoners put to death since the reinstatement of the death penalty in 1976.

In Pennsylvania and in other states around the nation, the death penalty — once a hot-button political issue — has been dying a quiet death.  Experts cite a variety a reasons, including a general decline in crime nationwide that has turned voters' attentions elsewhere.

District attorneys and other law enforcement officials continue to advocate for it, but as a political issue, it has all but disappeared.  "Let's face it, how many people actually get put to death?" said G. Terry Madonna of Franklin and Marshall College, calling the death penalty "virtually nonoperative" in Pennsylvania.  "In many states, it's a dead letter."

Gov. Wolf last year imposed a moratorium on executions pending a bipartisan committee's report on the commonwealth's use of capital punishment.  The report, more than two years overdue, is looking at costs, fairness, effectiveness, alternatives, public opinion, and other issues.

The committee, formed in 2011 during Gov. Tom Corbett's administration, has been collecting data with Pennsylvania State University's Justice Center for Research, which has just begun to analyze the information.  The basis for the center's death-penalty analysis will be 1,106 first-degree murder cases completed between 2000 and 2010, said Jeff Ulmer, a Pennsylvania State University professor working on the analysis.

The committee's report should follow before the end of the year, said Glenn Pasewicz, executive director of the state commission that oversees the committee.  Richard Long, executive director of the Pennsylvania District Attorneys Association, which supports the death penalty, said the report needs to come out as soon as possible.

The moratorium, he said, "becomes less and less temporary with every day that passes." State Sen. Stewart Greenleaf (R., Bucks), one of the leaders of the state task force, stressed the need for it to be thorough.  "I think it's going to be a landmark review of the death penalty, certainly in Pennsylvania, maybe nationally," he said.

The American Bar Association and the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System are among the groups that have criticized the inequality of Pennsylvania's capital punishment system and have urged changes.  About 150 death sentences and capital convictions in the state have been overturned in the post-conviction process, according to the Death Penalty Information Center, a nonprofit anti-capital punishment group. Of those, 120 have had new sentences imposed.

But juries continue to issue death sentences.  Pennsylvania has 180 people on death row, the fifth largest number in the country.  The 178 men and two women are housed in three state correctional institutions.

April 10, 2016 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

"Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"

A helpful reader alerted me to this article which has the title I have used for the title of this post.  I think these excerpts captures some the themes of this lengthy article: 

A focus on the juvenile sex offender — or any juvenile offender — has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.

Coverage of the JSO often unpacks the category of “sex offender” — pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties....

But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get — or that guilty people do not deserve fairness or sympathy.  This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18.  Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.

Exclusive focus on the young offender — rather than a rejection of the entire sex offender regime — avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”

Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, [Center on Youth Registration Reform] (CYRR) is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative.  Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks.  Lehrer also proposes hardening policies — such as “serious” penalties for child pornography possession and the expanded use of civil commitment — that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.

April 10, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill

Blog_prison_population_crime_bill_0The notable interchange a few days ago between former Prez Bill Clinton and protestors (noted here) has brought renewed attention to the contributions of the 1994 "Clinton" Crime Bill to mass incarceration and the massive reduction in modern crime rates.  Like every other important criminal justice story, there is considerable nuance to fully understanding (1) just what the 1994 Crime Bill did (and did not do), and (2) just what this single piece of federal legislation has produced with respect to crime and punishment two decades later.  Also full of considerable nuance is the role and record of Prez Bill Clinton (and now Prez candidate Hillary Clinton) on criminal justice reforms past and present.

All the political, policy and practical dynamics of the Clintons' record and the 1994 Crime Bill justifies considerable scholarly commentary, and lots of important nuances cannot be fully captured by soundbites or brief blog postings. Nevertheless, I thought it might be useful here, in service to encouraging a richer understanding of all these matters, to collect below a number of notable commentaries I have seen that help highlight why any simple account of the Clintons, crime, punishment and the 1994 Crime Bill is likely to be simply wrong:

UPDATE:  Here is another recent addition to this list via the New York Times: "Prison Rate Was Rising Years Before 1994 Law"

April 10, 2016 in Campaign 2016 and sentencing issues, National and State Crime Data, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, April 9, 2016

Death penalty abolition, broadened gun rights, heroin surge, police (mis)conduct, reduced sentences ... so many suspects in Chicago murder spike and NYC murder decline

The headline of this post is my effort to make some sense of this past week's dueling crime news headlines coming from two of America's largest cities:

As the title of my post is meant to suggest, I think there are so many notable legal and social developments that could be referenced in an effort to account for the increased mayhem in Chicago and the increased mildness in New York City.  Indeed, what is so remarkable is the reality that all of the high-profile developments referenced in the title of this post have occurred nearly in parallel in both jurisdictions over the last decade, and yet the potential impact of all these developments seems to be playing out so very differently.

In a number of prior posts in recent years (some of which I have linked below), I have tried to figure out what seems to be working and not working in these two big US cites and various others to reduce or increase violent crime. But, as some of the posts below suggest, it often seems that the only simple explanation for dynamic crime rate data is that they seem to defy simple explanations:

April 9, 2016 in Death Penalty Reforms, Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

In praise of "The Record" created by The Marshall Project

DownloadAnyone and everyone who reads this blog ought by now be regularly checking out all the criminal justice reporting and referencing now done by The Marshall Project. And, wonderfully, this terrific resource is now also committed to archiving criminal justice stories through what it is calling The Record.  Via the week-ending email I get from The Marshall Project, here is what this new feature is all about:

The Record is the online library TMP staff has curated over the past two years of some of the best criminal justice reporting on the internet.  Here is a 14,000-entry collection of reporting about topics, including “sentencing reform” and “death penalty”; events like the “Charleston Church shooting,” and people, including “Kalief Browder” and our namesake, “Thurgood Marshall.” Check it out and please send us your feedback....

There are many reasons why we did this; my favorite is that by making it easier for journalists, lawyers, academics, and others to find criminal justice stories we improve the chances that those engaged in the countless debates to come will be armed with more historical context and perspective, not to mention good, old-fashioned facts. That point was emphatically made on Thursday— the very day we launched, right on cue — by Bill Clinton, whose sharp retort to "Black Lives Matter" protesters begged for a look back at the conditions and consequences of the 1994 Crime Bill (a category included in The Record). The story of that law, like every other contentious criminal justice policy, is complicated, more complicated than either the protestors or the former president have made it out to be.  If the stories contained in The Record help illustrate the contours of those complications, the nuances that get lost in the heat of the moment, the background that helps explain why some themes suddenly rush to the foreground, our work will have succeeded.

April 9, 2016 in Recap posts, Recommended reading, Who Sentences? | Permalink | Comments (0)

Friday, April 8, 2016

New draft article, "De-Policing," seems to provide empirical support for "Ferguson effect" claims

I just came across this notable new article on SSRN titled simply "De-Policing," which seems to provide some general empirical support for what is now being called the Ferguson Effect. The piece, authored by Stephen Rushin and Griffin Sims Edwards, seems empirically sophisticated (though I lack the talents to check the empiricism), and here is the abstract:

Critics have long claimed that when the law regulates police behavior it inadvertently reduces officer aggressiveness, thereby increasing crime.  This hypothesis has taken on new significance in recent years as prominent politicians and law enforcement leaders have argued that increased oversight of police officers in the wake of the events in Ferguson, Missouri has led to an increase in national crime rates.  Using a panel of American law enforcement agencies and difference-in-difference regression analyses, this Article tests whether the introduction of public scrutiny or external regulation is associated with changes in crime rates.

To do this, this Article relies on an original dataset of all police departments that have been subject to federally mandated reform under 42 U.S.C. § 14141 — the most invasive form of modern American police regulation.  This Article finds that the introduction of § 14141 regulation was associated with a statistically significant uptick in crime rates in affected jurisdictions. This uptick in crime was concentrated in the years immediately after federal intervention and diminished over time. This finding suggests that police departments may experience growing pains when faced with external regulation.

April 8, 2016 in National and State Crime Data, Procedure and Proof at Sentencing | Permalink | Comments (8)

Latest USSC retroctivity data suggest prison savings approaching $2 billion from drugs-2 guideline amendment retroactivity

The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of two years.  So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $1.9 billion dollars.  

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.  Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

April 8, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Should we be linking nationwide crime spikes to heroin addiction and the black market it is driving?

The question in the title of this post is prompted by these two recent New York Times article:

As with all short-term and long-term changes in crime rates and patterns, I am strongly disinclined to assert or even suggest that a single causal factor provides a simple account for what is transpiring.  That said, I do not think it is a mere coincidence that opioid problems and broader crime problems have been increasing together.

April 8, 2016 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (4)

Thursday, April 7, 2016

"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"

The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application.  This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.  In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.

The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves.  Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric.  Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.

Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment.  First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse.  Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved.  This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.

April 7, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (2)

Former Prez Clinton takes on protestors complaining about his tough-on-crime policies

This new Reuters article, headlined "Bill Clinton confronts protesters who say his crime reforms hurt blacks," reports on a notable exchange about crime and punishment involving former President Bill Clinton today. Here are the details:

Former President Bill Clinton faced down protesters angry at the impact his crime reforms of 20 years ago have had on black Americans and defended the record of Hillary Clinton, his wife, who is relying on the support of black voters in her quest for the presidency. The former president spent more than 10 minutes confronting the protesters at a campaign rally in Philadelphia for his wife on Thursday over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people....

In Philadelphia, several protesters heckled the former president mid-speech and held up signs, including one that read "CLINTON Crime Bill Destroyed Our Communities."

Video footage of Hillary Clinton defending the reforms in 1994 has been widely circulated during the campaign by activists in the Black Lives Matter protest movement. In the footage she calls young people in gangs "super-predators" who need to "be brought to heel." Hillary Clinton, 68, who also has faced protesters upset by her remarks, in February said she regretted her language.

Bill Clinton, 69, who was president from 1993-2001, on Thursday defended her 1994 remarks, which protesters say were racially insensitive, and suggested the protesters' anger was misplaced. "I don't know how you would characterize the gang leaders who got 13-year-old kids hopped on crack and sent them out on the street to murder other African-American children," he said, shaking his finger at a heckler as Clinton supporters cheered, according to video of the event. "Maybe you thought they were good citizens. She (Hillary Clinton) didn't."

"You are defending the people who kill the lives you say matter," he told a protester. "Tell the truth."

Hillary Clinton promised to end "mass incarceration" in her first major speech of her campaign last year. She has won the support of the majority of black voters in every state nominating contest so far, often by a landslide....

Bill Clinton said last year that he regrets signing the Violent Crime Control and Law Enforcement Act into law because it contributed to the country's high incarceration rate of black people for nonviolent crimes. On Thursday, he did not explicitly recant those regrets, but appeared to be angry at any suggestion the bill was wholly bad.

The legislation imposed tougher sentences, put thousands more police on the streets and helped fund the building of extra prisons. It was know for its federal "three strikes" provision that sent violent offenders to prison for life. The bill was backed by congressional Republicans and hailed at the time as a success for Clinton....

Bill Clinton's remarks on Thursday drew criticism online. Some saw him as dismissive of the Black Lives Matter movement, a national outgrowth of anger over a string of encounters in which police officers killed unarmed black people.

April 7, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

In praise of my Ohio State students and their research on marijuana law, policy and reform

Regular readers are familiar with my periodic collecting of posts from my Marijuana Law, Policy and Reform blog.  Today, however, I have the pleasure of collecting and praising the posts which have been done in recent weeks by my Ohio State College of Law seminar students in that space as they make class presentations on an array of fascinating topics:

April 7, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

New Jersey Supreme Court reverses murder sentence after trial judge says he always gives that sentence

A unanimous New Jersey Supreme Court today issued an interesting sentencing opinion today in NJ v. McFarlane, No. 075938 (April 7, 2016) (available here), which gets started this way:

Defendant chased an unarmed man, whom he was attempting to rob, and shot him in the back with a revolver.  The victim was alive and gasping for air after he fell to the ground, but defendant robbed him and left him to die.  Defendant was convicted of first-degree murder, among other things, and sentenced to sixty years in prison.

We are called upon to determine whether defendant’s sentence should be vacated and the matter remanded for resentencing before a different judge, because the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to a defendant convicted by a jury of first-degree murder.  While we acknowledge the judge’s subsequent explanation for his remarks, preservation of the public’s confidence and trust in our system of criminal sentencing requires that the matter be remanded for resentencing by another judge of the same vicinage.

April 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Public concerns about crime and violence increases, justifiably, along with increasing crime rates

Fgroul1z306minwfhuphkwThis new report from Gallup, headlined "Americans' Concern About Crime Climbs to 15-Year High," details that it is not only politicians and researchers who have noticed that crime rates are up in recent years.  Here are the basic details:

Americans' level of concern about crime and violence is at its highest point in 15 years. Fifty-three percent of U.S. adults say they personally worry "a great deal" about crime and violence, an increase of 14 percentage points since 2014.  This figure is the highest Gallup has measured since March 2001.

Twenty-six percent of U.S. adults currently worry "a fair amount" about crime and violence, while 22% worry "only a little" or "not at all."

When Gallup first asked Americans about their level of concern regarding crime and violence in March 2001, 62% said they worried a great deal.  That figure remains the highest level of worry in Gallup's 15-year trend on this question. In the months leading up to 9/11, Americans consistently mentioned crime and violence as one of the most important problems facing the country in response to a separate Gallup question.  But after 9/11, crime and violence no longer appeared among the list of problems Americans identified as most important, with terrorism rising to the top.

In turn, the percentage saying they personally worry about crime and violence plunged to 49% by March 2002.  Crime worry remained at a lower level over the next decade, as Americans named other issues such as the situation in Iraq, terrorism, the economy, dissatisfaction with government and healthcare as the most important problems facing the country.  After falling to a record-low 39% in 2014, worry about crime and violence increased in 2015 and 2016.

The rise in Americans' level of concern about crime could reflect actual, albeit modest, increases in crime, as well as increasing media coverage of it.  The number of violent crimes reported to police across the country in the first half of 2015 was up by 1.7% compared with the same period in 2014, according to the FBI's 2015 Uniform Crime Report.  Many large U.S. cities reported spikes in their homicide rates in 2015, including Milwaukee, St. Louis, Baltimore and Washington, D.C. From a long-term perspective, though, violent crime is down significantly since the 1990s.

April 7, 2016 in Campaign 2016 and sentencing issues, National and State Crime Data, Who Sentences? | Permalink | Comments (4)

Disconcerting report on the (declining?) state of federal statutory sentencing reform efforts in Congress

This new New York Times report on the status and fate of federal statutory sentencing reform has me getting ever closer to asserting that the Sentencing Reform and Corrections Act will not get to President Obama's desk before election day.  The piece is headlined "Garland Fight Overshadows Effort to Overhaul Sentencing Laws On Washington," and here are excerpts:

A bipartisan overhaul of criminal justice laws was supposed to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and President Obama. Instead, the members of the Judiciary Committee who wrote the criminal justice package are at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.

This feud over the nomination has overshadowed the effort to reduce mandatory minimum sentences and ease the transition from prison. Now supporters of an overhaul are worried about its fate, especially with the Senate about to turn to a series of time­consuming spending bills and the electionyear calendar approaching a point where little gets done that is not absolutely necessary.

“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” said Senator Richard J. Durbin of Illinois, one of the chief Democratic authors of the bill. “The ball is now on the Republican side of the net.”

Before the death of Antonin Scalia in February created a Supreme Court vacancy, the criminal justice measure had already run into trouble from skeptical Senate Republicans, notably Tom Cotton of Arkansas. He contended that the proposed sentencing changes would result in the premature release of violent felons. And there were whispers about Willie Horton, the furloughed inmate who committed a rape while on release from a state prison in Massachusetts, a case that Republicans used in 1988 to portray Michael S. Dukakis, then the state’s governor and the Democratic nominee for president, as soft on crime.

The internal turbulence led Senator Mitch McConnell of Kentucky, the majority leader, to urge Republican authors of the measure to consider changes to win over some doubters and ease party divisions. They have retooled the legislation, decreasing the chances of felons who carried guns in their crimes qualifying for lighter sentences, among other expected revisions. The changes have won the backing of at least one Republican senator, Thad Cochran of Mississippi, whose aides say will support the reworked bill.

One of its top Republican supporters says they are making progress. “We continue to do work on criminal justice reform, to try to meet some of the concerns that have been previously stated and to shore up support and show additional support both inside and outside the Capitol for those important reforms,” Senator John Cornyn of Texas, the No. 2 Senate Republican, said Tuesday.

One problem backers of the bill have run into is that senators are questioning the political risk of supporting it when the measure might not go anywhere before the November elections. At the same time, some on the left contend that the measure has been too watered down.

Hoping to restore momentum, leaders of the U.S. Justice Action Network, a coalition of conservative and liberal groups behind the legislative effort, plan to bring leading advocates from around the country to Washington next week. They will meet with undecided senators and House members to make the case for the measure. The group has also scheduled a briefing for Senate staff members on Friday with former senior law enforcement officials to try to build support and ease doubts among Senate Republicans....Other backers of the measure, including some in the Senate, are expected to step up their push for the legislation next week as well, and new endorsements could be coming.

In the House, Speaker Paul D. Ryan of Wisconsin recently reaffirmed his support for a criminal justice overhaul, calling himself a late convert to the cause and promising to move forward with legislation. “We’re going to bring criminal justice reform bills, which are now out of the Judiciary Committee, to the House floor and advance this,” he said in a recent question-­and-­answer session....

Some see a potential upside in the Supreme Court fight. Mr. McConnell could be more motivated to bring the criminal justice measure to the Senate floor to show that Republicans, who are under withering criticism from Democrats on a daily basis over the Garland nomination, can work in a bipartisan way and produce some accomplishments.

“Senator McConnell has one of the bigger incentives to work on this particular bill because it is one of the few, if not the only, things that the left and right agree on,” said Inimai M. Chettiar, director of the justice program at the Brennan Center for Justice, a nonpartisan policy institute affiliated with the New York University School of Law.

What happens in the next few weeks will determine if the criminal justice effort has a chance this year.  Failure to find consensus would represent a major defeat not just for President Obama and congressional backers of the legislation, but also for the unusual coalition of disparate political forces that united behind it as an overdue course correction from the tough­-on-­crime approach of the 1990s.

I am starting now to worry that more than a few folks on the left may be disinclined to encourage Democratic Senators like Dick Durban to elbow the SRCA into the queue based on the hope that a big Democratic victory in November would enable a push for a more robust and far-reaching reform bill.  Moreover, as every day passes, it seem to me increasingly easy given various 2016 election timelines for any and every fence-sitting Senator to urge leadership to postpone a vote on federal sentencing reform at least until the 2016 lame duck sesssion or in the next Congress.

A few 2016 related posts:

 

UPDATE: I just came across this recent Roll Call piece striking similar themes and headlines "White House Eager to Rekindle Criminal Justice Effort: Cornyn 'optimistic' but GOP fissures, floor time posing problems."

April 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (7)

Wednesday, April 6, 2016

"Normative Retroactivity"

The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:

When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule.  The current retroactivity doctrine relies on a confusing substance-procedure dichotomy.  Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question.  Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.

This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity.  Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations.  Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.

April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Former coal exec gets maximum misdemeanor sentence for conspiracy to evade mine safety regulations

As reported in this AP piece, a federal "judge sentenced former coal executive Don Blankenship to a year in prison Wednesday for his role in the deadliest U.S. mine explosion in four decades, saying he was part of a 'dangerous conspiracy'."  Here is more on a high profile federal misdemeanor white-collar sentencing result:

One day after the sixth anniversary of the Upper Big Branch Mine explosion, which killed 29 men, U.S. District Judge Irene Berger gave the ex-Massey Energy CEO the maximum prison time and fine of $250,000. A federal jury convicted Blankenship on Dec. 3 of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. MOBlankenship's attorneys contended he should receive probation and a fine, at most. The judge denied their motion for Blankenship to remain free as he appeals. It's not clear when he must report to prison.

As Blankenship left the courthouse, a few family members of miners who were killed started yelling at him while he and his attorneys spoke with reporters. "We buried our kid because of you," said Robert Atkins, whose son Jason died in the explosion.  "That's all I got is a goddamn tombstone."  Asked by a reporter what he had to say to the shouting family members, Blankenship said: "Well, just that the coal miners didn't cause the accident."...

U.S. Secretary of Labor Thomas Perez echoed prosecutors in saying the maximum punishment didn't fit the crime.  "This administration continues to support efforts in Congress to strengthen those penalties, and we stand ready to work with members who believe that no worker should lose their life for a paycheck," Perez said in a news release.

At Upper Big Branch, four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.  Blankenship disputes those reports.  He believes natural gas in the mine, and not methane gas and excess coal dust, was at the root of the explosion.

Sens. Joe Manchin and Shelley Moore Capito and the United Mine Workers of America spoke favorably about the decision.  The sentencing capped a wide-spanning investigation into Massey following the explosion. Four other workers in the corporate chain were convicted of crimes including faking a foreman's license, lying to federal investigators and conspiring in an illegal scheme to warn miners and other subsidiaries of surprise safety inspections.  Their sentences ranged from less than a year to more than three years in prison.

The judge described Blankenship's rise from a meager, single-mother Appalachian household to one of the wealthiest, most influential figures in the region and in the coal industry. "Instead of being to be able to tout you as a success story, we are here as a result of your part in a dangerous conspiracy," she said.

During the trial, prosecutors called Blankenship a bullish micromanager who meddled in the smallest details of Upper Big Branch.  They said Massey's safety programs were just a facade — never backed by more money to hire additional miners or take more time on safety tasks. Blankenship was acquitted of felonies that could have stretched his sentence to 30 years....

In 2011, Alpha Natural Resources, which bought Massey after the explosion, agreed to pay $210 million to compensate grieving families, bankroll cutting-edge safety improvements and pay for years of violations by Massey Energy.  Under the deal with federal prosecutors, Alpha wasn't criminally charged.  The judge already ruled that Blankenship won't have to pay $28 million in restitution to Alpha Natural Resources, helping him avoid a serious blow to his personal fortune.  Berger also ruled that Blankenship would not have to pay restitution to about 100 people, including former miners and family members.

April 6, 2016 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, White-collar sentencing | Permalink | Comments (7)

Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity

Me_lifers_juvenile_040516A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences.  Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed."  The lengthy and details article gets started this way:

Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.

The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.

Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.

Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.

Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.

Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.

“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”

County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.

Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.

April 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, April 5, 2016

"How Drug Warriors Helped to Fuel the Opioid Epidemic"

The title of this post is the headline of this notable new Atlantic piece.  Here is how it starts and ends:

Despite almost 50 years of the drug war — a policy that creates black markets, enriches drug cartels, and fuels killing zones in scores of cities, even as it causes the United States to cage more human beings than any other democracy in the world — it remains extremely easy for Americans to acquire the most addictive, deadly drugs.

“Overdoses from heroin, prescription drugs, and opioid painkillers have overtaken car accidents to become the leading cause of injury-related deaths in America,” The Economist reports.  “In 2014, they were responsible for 28,647 deaths. Between 2001 and 2014, deaths from heroin overdoses alone increased six-fold, according to the National Institute on Drug Abuse.  On average, 125 people a day die from drug overdoses, 78 of them from heroin or painkillers. These numbers have been compared to deaths from HIV in the late 1980s and 1990s.”

Had the War on Drugs merely failed to prevent this epidemic, even as it destabilized numerous countries and undermined domestic liberties, it would be an abject failure.  But federal drug policy has actually been worse than useless in heroin’s rise.

In a saner world, American researchers and patients would’ve spent the last several decades experimenting with marijuana to maximize its potential as a pain reliever.  Pot use isn’t without health consequences, but is much less harmful than many prescription drugs.  Instead, drug warriors fought to stymie marijuana research, keep pot illegal, and stigmatize medical marijuana as a dangerous fraud, even as doctors prescribed more opioid painkillers — that is, medical heroin. Many get addicted, and when the pills run out, they seek a street substitute....

“What has made it previously difficult to emphasize treatment over criminal justice,” President Obama said last month, “is that the problem was identified as poor, minority, and as a consequence, the thinking was, it's often a character flaw in those individuals who live in those communities, and it's not our problem they're being locked up. One thing that's changed in this opioid debate is that it reaches everybody.  Because it's having an impact on so many people, we're seeing a bipartisan interest in addressing this problem … not just thinking in terms of criminalization or incarceration, which unfortunately has been our response to the disease of addiction."

But even today’s reformers are far too timid. The War on Drugs rages daily, and it is still a catastrophe.  The catastrophe is rooted in the black markets that federal policy creates.  It is exposed by the urban killing zones that those markets guarantee.  It is shown to be futile by the ease of acquiring the most addictive drugs despite prohibition. And it is exacerbated by decades of efforts to prevent milder drugs from serving as substitutes.  End it.

April 5, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

More reflections and criticisms of clemency work past, present and future

I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency.  Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:

Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.

Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena.  In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:

In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes.  Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.

Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few?  Typically, a reluctance to exercise the pardon power is a result of political timidity.  But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.

The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process.  Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice.  Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.

When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.  It is not an incidental fact that Ms. Yates is a career prosecutor.  When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.

I was a federal prosecutor for five years.  In that job, deciding someone’s fate is a necessary but difficult emotional commitment.  The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear.  We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.

President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice.  An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president.  That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.

And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations.  Here is how Senator Shelby's letter gets started:

I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:

  • Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
  • Four convictions of possession of a firearm by a felon; and
  • Two convictions of use of a firearm in furtherance of a drug trafficking offense.

In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.

By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses.  I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes.  This announcement clearly demonstrates that the Administration is not following its own selection criteria.  Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.

April 5, 2016 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Keeping Track: Surveillance, Control, and the Expansion of the Carceral State"

The title of this post is the title of this new article by Kathryne Young and Joan Petersilia which reviews a trio of criminal justice books. Here is the abstract:

This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted.  To explore the ground level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs.

Substantively and methodologically, the books might first seem an odd trio.  But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.

April 5, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Disconcerting data on racial skew in application of mandatory minimums in Iowa

This lengthy local article, headlined "Blacks hit hard by Iowa's mandatory sentences," reports on the disparity in the application of certain state sentences in the heartland. Here is how the article starts:

More than 1,190 inmates are serving time in Iowa prisons for violent crimes that, by law, require a specific number of years behind bars and at least 70 percent of the sentences be served before they're considered for parole.  And at least 35 percent of those inmates are black — in a state where 3.4 percent of the population is African-American.

If you want to know why Iowa imprisons a larger share of its black residents than almost any other state, mandatory minimum sentencing laws are one place to start, critics say.  Iowa's lopsided statistics have prompted the state’s Public Safety Advisory Board for three consecutive years to recommend that the Legislature ease sentencing mandates on two crimes — first- and second-degree robbery — that have been especially tough on African-Americans, said Thomas Walton, the board’s chairman and a Des Moines attorney.  During a four-decade period, 42 percent of Iowa inmates serving prison time for robbery were black, state data show.

A Des Moines Register review of robbery sentencing guidelines for 11 Midwestern states shows that Iowa’s are the most restrictive.  They allow the least amount of judicial discretion in determining how much time an offender will spend behind bars.  “The theory behind mandatory minimum sentences was, ‘Let’s lock them up for a longer period of time … and then we’ve avoided those re-offenses for the period of time that they’ve been incarcerated,’” Walton said. “Some of those assumptions, based on studies done by our board staff, were not necessarily correct.”

Iowa finds itself embroiled in the same debate raging nationally over the impact of mandatory minimum sentences, which were put in place during the get-tough-on-crime decades of the 1980s and '90s and have ballooned prison populations....

This year, the Iowa House, acting on part of the advisory board’s recommendation, approved a bill that includes loosening the mandatory minimum sentence for second-degree robbery.  Judges would have the discretion to say how much time an offender would serve — from three to seven years — before becoming eligible for parole on the 10-year sentence.  Now, offenders must serve at least seven years.

But Sen. Kevin Kinney, D-Oxford, filed an amendment stripping the proposal from House File 2064, which has not been voted on by the Senate.  “When there is a weapon brandished during a robbery, I have a hard time reducing the sentence,” said Kinney, a retired Johnson County sheriff’s officer.  “I just don’t want to reduce penalties for violent crimes.”

April 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (3)

Monday, April 4, 2016

"Summary Injustice: A Look at Constitutional Deficiencies in South Carolina’s Summary Courts"

The title of this post is the title of this new report produced by National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) about low-level (in)justice in the low country. Here is a summary account via this press release of Summary Injustice:

In South Carolina, the bulk of criminal cases are low-level offenses heard in municipal and magistrate courts, collectively referred to as summary courts.  These courts often fail to inform defendants of the right to counsel, refuse to provide counsel to the poor at all stages of the criminal process, and force defendants who can’t afford to pay fines to instead serve time in jail.

“When you go to a summary court in South Carolina, you find yourself in a judicial netherworld where the police officer who made the arrest acts as the prosecutor, the judge may not have a law degree, and there are no lawyers in sight,” said Susan Dunn, legal director of the ACLU of South Carolina.  “By operating as if the Sixth Amendment doesn’t exist, these courts weigh the scales of justice so heavily against defendants that they often receive fines and jail time they don’t deserve.”

This report documents the constitutional violations observed by attorneys with NACDL and the ACLU in 27 different courts throughout the state during several weeks between December 2014 and July 2015, including multiple stories from defendants.  The U.S. Constitution guarantees that a person accused of a crime and who faces loss of life or liberty as punishment has the right to a lawyer even if he or she can’t afford one.

“Many, if not most, people will read this report and be shocked by the numerous and profound constitutional deficiencies in South Carolina’s summary courts as observed by NACDL and the ACLU since they began this research in 2014,” said longtime Rock Hill, South Carolina, criminal defense lawyer and NACDL Treasurer Chris Wellborn. “Sadly, as someone who has spent my career representing the criminally accused in South Carolina, I am only able to underscore how pervasively these courts have been disregarding the rights of the people of South Carolina, and that it’s been like this for decades.”

NACDL President E.G. “Gerry” Morris said: “While this important report, and a forthcoming second report to be released later this year, is focused on South Carolina, it is part of a larger initiative to study state level public defense delivery systems across the nation.  The ultimate goal is to identify and document weaknesses in different public defense delivery systems that must be remedied as well as to highlight strengths and successes in systems that can and should be replicated elsewhere.  More than 50 years after the Supreme Court’s landmark decision in Gideon v. Wainwright, the people of America are entitled to nothing less than to have their courts respect the very rights recognized and protected by the Constitution.  NACDL will not waver in its mission to shine the light brightly on systems where that is not happening, and to offer policymakers effective solutions to what is quite clearly a widespread problem of constitutional dimensions.”

April 4, 2016 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms

This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.) Here are the basic details on what is prompting this hearing:

Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”

In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.

But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.

What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.

Cross posted at Marijuana Law, Policy and Reform.

April 4, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

Lots of little SCOTUS criminal justice work to start April

April is always an exciting month for me as both a sports fan and a SCOTUS watcher: as a sports fan, I have the certain joys of the start of the MLB baseball season, the Masters, and the start of the "real" season in the NBA and NHL; as a SCOTUS watcher, I have the uncertain joys of anticipating the Justices winding down its current Term by perhaps handing down some big criminal justice opinions or cert grants.  And just as the MLB season is off to something of a cold April start — e.g., it was 39 degrees for the very first pitch yesterday in Pittsbugh, and today's Yankees game has already been postponed — so too is SCOTUS keeping it cool in the criminal justice arena at the start of April.

Specifically, the Justices kicked off one of my favorite months with three little criminal justice developments:

  1. A cert grant in Pena-Rodriguez v. Colorado to consider "whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury";

  2. A per curiam opinion in Woods v. Etherton to summarily reverse on AEDPA defenence grounds a decision by the Sixth Circuit in favor of a state habeas petitioner;

  3. A unanimous opinion in Nichols v. US to hold that SORNA did not require a sex offender to update his registration in Kansas once he departed the State for the Phillipines. 

If I did not have to obssess over a number of other matters this morning (including whether I managed to acquire any fantasy baseball sleepers during my draft this past weekend), I might be able to find some sleeper SCOTUS story to discuss within these developments. But absent readers helping me identify something big in these seemingly little developments, I am likely to move on to other bloggy matters (such as continuing to speculate how Justice Scalia's untimely demise has been impacting the Court's work in criminal justice cases).

April 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, April 3, 2016

"Subconstitutional Checks"

The title of this post is the title of this great-looking new paper authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Constitutional checks are an important part of the American justice system.  The Constitution demands structural checks where it provides commensurate power.  The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct.  However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.

Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another.  The need for sub constitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state.

As a result, the lack of structural constitutional checks in criminal law has lead to constitutional dysfunction.  Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct.  This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.

April 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

A more positive spin on clemency developments and more positive aspects

LisaRichRegular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:

A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency.  I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons.  First, all of us, including the President and White House staff saw and heard what hope is all about.  We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment.  We heard people who genuinely want to make their communities and their lives better, stronger, and happier.  I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events.  As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions.  Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them.  These students are the future policymakers and advocates.  To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.

April 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Might the US be willing to learn from the German prison experience?

The question in the title of this post is prompted by this new Huffington Post commentary by Vincent Schiraldi, headlined "What we can learn from German prisons."  The commentary provides a bit of a preview of this segment to air tonight on 60 Minutes under the title "This is prison? 60 Minutes goes to Germany: Germany's prison system keeps convicts comfortable, costs less and has lower recidivism rates, but would Americans ever accept it?".  Here is the start of the Huffington Post piece:

On Sunday, April 3, 60 Minutes will air a story on several U.S. delegations to German prisons by advocates, researchers and public officials that should be mandatory viewing for anyone who works in or cares about America’s massive prison problem. In a country that has only a fraction of our incarceration rate, even Germany’s deepest-end prisons are humane and decent in ways that, at least at present, are difficult to fathom in the U.S. context.

The groups who funded or organized the trips - the Vera Institute of Justice, John Jay College of Justice, and the Prison Law Office - hope to change that. Inspired by these delegations, when I was working for Mayor Bill de Blasio’s Office of Criminal Justice, I organized a study tour to one of the prisons they had visited - the Neustrelitz Prison near Berlin, which houses adolescents and young adults.

The place couldn’t have been more different than a U.S. prison or juvenile facility. In fact, it was a bit of both, because young people are allowed to be tried in Germany’s juvenile courts up to age 21, unlike U.S. juvenile courts whose jurisdiction expires somewhere between ages 16 and 18, depending on the state.

The young people we met were all involved in programming from farming, to wood shop, to metal work, to in-depth therapy. The freedom of movement was extraordinary, with most youth sleeping in unlocked rooms at night and eventually going on home visits and transitioning out to daytime work, returning to the facility at night. Sentences were much shorter than those experienced by people locked up in the U.S., which partially explains why only 79 out of every 100,000 Germans are behind bars, compared to America’s world-leading incarceration rate of 700 per 100,000.

April 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, April 2, 2016

"Unfinished Project of Civil Rights in the Era of Mass Incarceration and the Movement for Black Lives"

The title of this post is the title of this newly published article authored by Nicole Porter. Here is the piece's introduction:

American criminal justice system has been dominated by relentless growth for the last forty years. The culture of punishment, in part driven by political interests leveraging “tough on crime” policies and practices marketed as the solution to the “fear of crime,” has been implemented at every stage of the criminal justice process: arresting, charging, sentencing, imprisonment, releasing, and post-incarceration experiences in the era of mass incarceration.

While it may not excuse criminal offending, the destructive effects of mass incarceration and excessive punishment are visited disproportionately upon individuals and communities of color and reinforce that the project of the civil rights revolution remains unfinished.  In recent years, there has been growing consensus across ideological lines to address mass incarceration.  Yet, policy changes are incremental in approach and do not achieve the substantial reforms needed to significantly reduce the rate of incarceration and its collateral impacts.  Incremental policy reforms include: reducing the quantity differential between crack and powder cocaine that results in racially disparate sentencing outcomes at the federal level and in certain states; reclassifying certain felony offenses to misdemeanors; expanding voting rights and access to public benefits for persons with felony convictions; and adopting fair chance hiring policies for persons with criminal records.

The Movement for Black Lives, or Black Lives Matter, offers a new public safety framework to finish the project of civil rights in the era of mass incarceration.  This movement has a sophisticated analysis that seeks to address the underlying structural issues that result in poor policy outcomes for communities of color, including high rates of incarceration.  The public safety framework does not excuse criminal offending, but offers a new approach of viewing justice-involved persons — a disproportionate number of whom are African American and Latino — as worthy recipients of public safety responses not dominated by arrests, admissions to prison, or collateral consequences.

Aligning a Black Lives Matter framework with public safety strategies expands policy responses beyond the criminal justice system to evidence-based interventions demonstrated to reduce criminal offending.  Research shows that early childhood education, quality healthcare, and targeted employment programs can help reduce recidivism and prevent justice involvement.  More importantly, the Black Lives Matter framework can help to shift norms away from the punitiveness that dominates U.S. criminal justice policy.

April 2, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Noticing the notable nature of states now categorically banning LWOP for juvenile murderers

This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors.  And most of them are red states."  Here are excerpts:

As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate.  Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.

But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.

Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.

On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.

The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....

In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.

Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.

Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....

At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime?  In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.

Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen.  "Why should we take that discretion away from the judge?"

A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....

And success, as described here, is relative.  More than half of U.S. states still allow the sentence, after all.  But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.

April 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

"Racial Disparities in Youth Commitments and Arrests"

The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:

Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half.  Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years.  Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.

Both white youth and youth of color attained substantially lower commitment rates over these 10 years.  For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000).  The combined effect was to increase the commitment disparity over the decade.  The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).

As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely.  Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.

Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent.  Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.

April 2, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Friday, April 1, 2016

GOP frontrunners Donald Trump and Ted Cruz author joint letter urging Prez Obama to commute tens of thousands more federal sentences!

April-Fool-5Apologies to those who clicked through based on the headline of this post to discover that this headline is my lame attempt to bring a timely sentencing spin to April Fools Day. 

As I was thinking about what to post on this special day for silliness and pranks, it dawned on me that whomever does eventually become the GOP candidate for President probably would be eager to have Prez Obama commute tens of thousands of prison sentences before the election... so that he could thereafter blame any and all future crimes on the current President and every other Democrat currently in office or running for office.  This reality, I think, helps explain why Prez Obama has still been so stingy with his clemency grants to date despite so much talk about a big clemency push.

Indeed, in light of Prez Obama's grant of only 61 more commutations earlier this week (details here), I am inclined to predict that we will only see, at most, a few dozen more clemency grants before the November election.  But once the election is completed, I think it is entirely unpredictable what Prez Obama might do in the clemency arena.  Prez Bill Clinton issued a large number of last-day clemencies, including a notorious pardon to campaign funder and fugitive Marc Rich, and the controversy that created likely led the Prez George W. Bush only granting a few lame-duck clemencies.

Ironically, if a fellow Democrat is elected in November, I suspect Prez Obama will be inclined to grant fewer lame-duck clemencies: he likely will not wish to create any unique challenges or controversies when a member of his own party takes over his position in the Oval Office, and he likely will be hopeful that a successor from his party will continue his visible clemency push.  In contrast, if a Republican wins in November, I would expect Prez Obama to grant more clemencies so that he could in this way burnish his claim to have lived up to his "hope and change" campaign mantra in the criminal justice arena.

Finally, while focused on the intersection of April Fools Day and the 2016 campaign, am I crazy to imagine that GOP frontrunner Donald J. Trump might give a big speech today to announce that his entire campaign was just a massive prank and the most amazingly extended form of performance art in American political history?

April 1, 2016 in Campaign 2016 and sentencing issues, Clemency and Pardons, Who Sentences? | Permalink | Comments (8)

Federal district judge astutely asks feds for accounting of political corruption sentences before high-profile NY pol sentencing

As reported in this New York Post article, headlined "Judge in Shelly Silver’s case wants to know how much time crooked pols usually get," a federal district judge has ordered federal prosecutors to help her discharge her post-Booker sentencing duties under 18 USC 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Here are the interesting details:

Manhattan federal Judge Valerie Caproni wants a chart outlining sentences for previously convicted New York politicians ahead of Sheldon Silver’s sentencing next month.  In an order to prosecutors filed Thursday, Caproni asked for the information to “consider the need for unwarranted disparities between similarly situated defendants.”

The judge wants the government to include in its sentencing submission paperwork “a summary chart containing the sentences imposed on elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years to the extent that information is not unduly burdensome to obtain,” the one-page order says.

Prosecutors will have their hands full: Dozens of New York politicians have been convicted of charges varying from bribery to mail fraud and racketeering to tax evasion, prosecutors said.

Ex-City Councilman Dan Halloran was slapped with a stiff 10-year prison sentence for masterminding a failed $200,000 bribery plot to rig the 2013 mayoral election for then-state Sen. Malcolm Smith.  Meanwhile, ex-Senate Majority Leader Smith, who was also busted, got seven years behind bars.

And Hiram Monserrate, the Democratic state senator who looted nearly $100,000 in taxpayer money to win higher office, was sent away for two years in 2012 after pleading guilty.  Another disgraced ex-state senator, Pedro Espada Jr., received a five-year sentence for bilking a taxpayer-funded nonprofit to pay for his lavish lifestyle.

Silver faces up to 130 years behind bars after he was convicted in November of corruption charges.  The 72-year-old ex-Assembly speaker will likely receive far less at his sentencing April 13.

Prosecutors’ sentencing submission is due by April 6, court records show. Ex-Senate Majority Leader Dean Skelos — who was convicted with his son, Adam, of bribery and corruption just weeks after Silver — also faces 130 years.  The Skeloses will be sentenced April 28.

Based on the quote of this article, it seems that Judge Caproni has asked not merely for sentencing details on convicted New York politicians, but all "elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years." I am guessing there could be hundreds of politicians nationwide who fit into this category. I would be especially interested to see what this summary chart looks like, and I hope to be able to post it on this blog whenever it becomes publicly available.

April 1, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, March 31, 2016

A telling, but still unsatisfying, SCOTUS discussion of retroactivity during oral argument in Welch

As previewed in this post, yesterday the Supreme Court heard oral argument in Welch v. United States, which is principally concerned with the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.  I am deeply interested in this Welch case, not only because I helped with this law professor amicus brief in Welch, but also because I have authored this law review article to explain my view that traditional SCOTUS retroactivity doctrines — so called Teague doctrines — developed with unique concern for the importance of preserving the finality of convictions are not necessarily the best was to examine whether and when a new sentencing rule ought to apply retroactivity.

Helpfully, Rory Little has followed up his terrific Welch oral argument preview post at SCOTUSblog with this spot-on oral argument review post titled "Argument analysis: A likely decision in favor of retroactivity?."  Having read the full argument transcript in Welch (which is available here), I fell well positioned to assert that Rory's analysis is a much better and more enjoyable read, and it includes these essential insights at its start and end:

While it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions. And as I explained in my preview, that result is likely, although not certain, to result in substantial sentencing reductions for a significant number of convicted federal defendants....

The law of retroactivity presents intellectual conundra that may never be fully settled.  The decision in this case is likely to be simply one more precedent in the wavering doctrinal line.  We will never know what Justice Harlan, or Justice Scalia, thinks of it.  But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.

Though I am no longer a young law professor, the intricacies of retroactivity doctrines as articulated in Teague and its progeny are a source of frustration and concern for me.  And the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case (as they have recently show they are wont to do in Montgomery v. Louisiana decided a few months ago).  As I suggest in this law review article, applying traditional Teague doctrines in retroactivity cases that involving only sentencing issues necessarily involves banging a square equitable peg into and round Teague doctrinal hole.  And yet, after reading the Welch transcript, it seems the Justices are for now content to just keep banging away.

March 31, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science

The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.

The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States."  Here is an excerpt from that introduction:

This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.”  She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks.  At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination.  The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years.  The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization.  While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.

March 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"

In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  Today I received an email concerning the great new work of this great new initiative.  Here is part of this email reporting on this new report from FPP:

As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment.  The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.

The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country.  By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.

“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”

Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...

“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”

March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud"

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

Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines.  The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime.

This Article examines the role of the “intended loss” calculation.  The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability.  By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable.  Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct.

Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability.  It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.

March 31, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

Wednesday, March 30, 2016

GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal

This recent article at The Crime Report, headlined "Trump On Crime: Tough Talk, Few Specifics," highlighted how hard it is to figure out Donald Trump's policy position on various criminal justice issues (in which I was quoted):

Most experts we talked to say it’s hard to distinguish the rhetoric from the policies. “[The Trump campaign] has not issued a platform yet, so I’m not sure that I’d take anything that he’s been saying as an actual criminal justice policy,” said Inimai M. Chettiar, director of the Brennan Center’s Justice Program.

“What’s really frustrating, is that (he’s) like a cardboard candidate; you know what his pitch is but you don’t know anything else beyond that,” said Prof. Laurie Levenson of Loyola Law School. “And maybe he doesn’t either.”

Berman suggests half-jokingly that there’s a “simple answer” to the question of what Donald Trump believes about criminal justice. “Who the hell knows?” he said.

On many policy issues, Trump has sidestepped detailed responses by pointing to his experience in real estate and suggesting that good dealmakers keep their positions ambiguous at the start of any negotiation. That seems to apply to his approach to justice as well. Asked about specific criminal justice reforms, Trump often changes the subject back to supporting police or vague answers about needing to be “tough.”

But today GOP frontrunner Trump is making headlines for talking about criminal punishment in an especially controversial setting.  This FoxNews piece, headlined "Trump says abortion ban should mean punishment for women who have procedure," provides the details:

Republican presidential front-runner Donald Trump said Wednesday said that if abortion were illegal in the United States, then women who have the procedure should be punished.  Trump made the comments during a taping of an MSNBC town hall that will be aired later Wednesday.

Host Chris Matthews pressed Trump to clarify, asking him whether abortion should be punished and who ultimately should be held accountable. “Look, people in certain parts of the Republican Party, conservative Republicans, would say, ‘Yes, it should,’” Trump said. The candidate later put out a statement saying: “This issue is unclear and should be put back into the states for determination.”...

When asked specifically at the town hall what he thought, the New York businessman answered, “I would say it’s a very serious problem and it’s a problem we have to decide on. Are you going to send them to jail?”

“I’m asking you,” Matthews prompted.

“I am pro-life,” Trump said.

Matthews pressed on, asking again who should be punished in an abortion case if it were illegal.

“There has to be some form of punishment,” Trump said.

“For the woman?” Matthews asked.

“Yeah,” Trump responded, adding later that the punishment would “have to be determined.”

His rivals seized on the remarks. Ohio Gov. John Kasich later told MSNBC “of course women shouldn’t be punished.” An aide to Texas Sen. Ted Cruz tweeted: “Don't overthink it: Trump doesn't understand the pro-life position because he's not pro-life.”

With all due respect to the statement made by an aide to Senator Ted Cruz, it seems to me that Donald Trump actually understands — and may be taking more seriously than many other politicians — the oft-stated pro-life position that life begins at conception and that abortion it at least somewhat akin to homicide.

The National Right to Life Committee, the nation's oldest and largest pro-life organization,  states expressly here that in the US "over 40 million unborn babies have been killed in the 40 years since abortion was legalized and more than 1.2 million are killed each year" and that "medical science has known conclusively that every individual's life begins at the moment of fertilization."   Pro-Life Action League states expressly here that "killing an unborn child is inherently wrong, and therefore can never be justified regardless of circumstances. It is no more just to kill an unborn child in order to avoid hardship than it would be to kill a toddler to avoid hardship. Because the unborn child is unseen, it is easier for society to condone killing him or her, though this is morally indistinguishable from killing any child at any stage of development."  The American Life League similarly states expressly here that "abortion is a direct attack on a preborn child which kills; it is murder."

If one genuinely believes that any abortion involves the intentional "killing" of a human life, that it is "morally indistinguishable from killing any child at any stage of development," and that "it is murder," and thus an act which should be criminally prohibited (like all other forms of intentional homicide), then I would hope that one ought also be genuinely committed to criminally punishing, at least to some extent, any and every person intentionally involved in this act of intentional killing which "morally indistinguishable from killing any child at any stage of development." 

In modern society, we threaten to punish all sorts of persons (at least with fines) for all sorts of petty crimes like overtime parking and illegal copying of a DVD and loitering.  I believe I am understanding and showing respect to the views and claims of persons who are pro-lifer when I surmise they consider any intentional abortion to be a societal wrong that is far more serious than, say, overtime parking or loitering.  If that is right, then I also think it would be fair to say that Donald Trump is actually understanding and showing respect for the views and claims of persons who are pro-life when he suggests that women intentionally involved in obtaining illegal abortions ought to be subject to at least "some form of punishment."

March 30, 2016 in Campaign 2016 and sentencing issues, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP

A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:

Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1).  This crime carries a mandatory statutory penalty of either death or life imprisonment.  The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments.  See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).

The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence.  For the reasons set forth below, we affirm the district court’s decision.

March 30, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Mississippi Gov supporting state legislative effort to use firing squads as back-up execution method

A helpful reader alerted me to this local article from Mississippi headlined "Governor Bryant supports firing squad bill."  Here are the details:

The Mississippi House wants to allow the state prisons to execute prisoners using a firing squad if officials decide lethal injection is too expensive or unavailable.

Governor Phil Bryant voiced his support of the bill. “If the senate passes a firing squad bill, I’ll certainly sign it. My belief is we need to carry out a capital punishment that when the courts say that it’s necessary; and if it takes a firing squad we’ll do exactly that,” said Governor Bryant.

The house amended the bill Friday before passing it. It will now go back to the senate for more work. Attorney General Jim Hood has asked lawmakers to approve alternate execution methods such as electrocution, the use of nitrogen gas as well as the firing squad.

As long time readers surely know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged an discussion of various new and old execution procedures that might be explored suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." I suppose I am pleased to hear leaders in Mississippi have come around, but there sure seems to have been a whole lot of capital justice delayed in that state and many others because of a failure of states to seriously explore alternative execution methods.

Just a few prior related posts on firing squads and other alternatives over the last decade:

March 30, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Prez Obama commutes the sentence of 61 more federal drug offenders

As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:

More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations.  White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year....  Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied.  Another 9,115 clemency petitions from prisoners are still pending....

But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency.  “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence.  My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”

The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies.  So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”

Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner.  The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years.  He received no response until now....

On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.

This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group.  Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014."  This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:

Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws.  More than one-third of them were serving life sentences.  To date, the President has now commuted the sentences of 248 individuals more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.

Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton.  During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life. 
 
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.  To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.

March 30, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)