Monday, December 8, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?".  The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.

I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:

Not to worry -- this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.

Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.

Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.

But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.

The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise.  The liberal bubble is big. It's also, for the most part, impenetrable.

And it's one more thing -- wrong.

If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones.  One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....

[T]there are some prominent people in the Republican Party on board with "sentencing reform."  But the great majority of Republicans, and the center of the Party, are not being fooled.  The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....

So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform."  Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.

There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.

Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party).  Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey."  Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.

But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform.  Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years.  And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.

Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons.  According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws.  But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.

(Notably, these generational and demographic realities concerning sentencing reform are not only a  GOP story.  Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform.  But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)

Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works."   Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working.  That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.  

Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties.  But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo.  Whether and how these competing groups views as to  "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950. 

December 8, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Notable new resources from DOJ and DOE to improve education in juve justice systems

I am pleased and intrigued to see this new DOJ press release titled "Attorney General Holder, Secretary Duncan, Announce Guidance Package on Providing Quality Education Services to America's Confined Youth." Here are notable excerpts from the press release which, inter alia, links to a whole array of additional related resources:

Attorney General Eric Holder and Secretary of Education Arne Duncan today announced a Correctional Education Guidance Package aimed at helping states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day....

“In this great country, all children deserve equal access to a high-quality public education — and this is no less true for children in the juvenile justice system,” said Attorney General Holder.   “At the Department of Justice, we are working tirelessly to ensure that every young person who's involved in the system retains access to the quality education they need to rebuild their lives and reclaim their futures.   We hope and expect this guidance will offer a roadmap for enhancing these young people's academic and social skills, and reducing the likelihood of recidivism.”

“Students in juvenile justice facilities need a world-class education and rigorous coursework to help them successfully transition out of facilities and back into the classroom or the workforce becoming productive members of society,” said Secretary Duncan.   “Young people should not fall off track for life just because they come into contact with the justice system.”...

“High-quality correctional education is thus one of the most effective crime-prevention tools we have,” Attorney General Holder and Secretary Duncan wrote in a dear colleague letter to chief state school officers and state attorneys general.  “High-quality Correctional education – including postsecondary correctional education, which can be supported by Federal Pell Grants — has been shown to measurably reduce re-incarceration rates. Less crime means not only lower prison costs — it also means safer communities.”...

Providing young people in confinement with access to the education they need is one of the most powerful and cost-effectives strategies for ensuring they become productive members of their communities.  The average cost to confine a juvenile is $88,000 per year — and a recent study showed that about 55 percent of youth were rearrested within 12 months of release.  Inmates of all ages are half as likely to go back to jail if they participate in higher education — even compared to inmates with similar histories.

December 8, 2014 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Are prosecutors above the law?"

The title of this post is the title of this lengthy new commentary at Daily Kos.  It starts and ends this way: 

There is something terribly wrong with a justice system that allows an inordinate amount of power to reside in the hands of one office that not only has no real accountability or oversight, but is insulated from the consequences of its actions by court-granted immunity. And no, I am not talking about Supreme Court justices, but about prosecuting attorneys.

The prosecuting attorney — whether local, state, or federal — has an incredible amount of authority and discretion in how to exercise that authority.  The prosecuting attorney decides how many, and what kind of charges are brought in criminal prosecutions. The prosecuting attorney has the ability to directly charge a crime, or to use a grand jury for more serious crimes, to indict a defendant.  The prosecuting attorney has the authority to offer plea bargains.

And while there should be some type of accountability other than election, and while the fiction exists that prosecuting attorneys could be disbarred, in reality, they face little punishment for abusing their discretion or authority....

Prosecutors do need some level of immunity in order to properly perform their duties. And they require prosecutorial discretion in order to keep the wheels of justice turning. We have seen how efforts to restrict judicial discretion resulted in mandatory minimum sentences, removing a judge's discretion in sentencing entirely.  (Now it is the prosecutor who determines the sentence by exercising his discretion in deciding what charges an offender will face.)  But there does need to be some limit, some oversight to a prosecutor's office.

If grand juries only exist to give the result the prosecutor desires, what is the point of using them?  Initially, they were to allow citizens some input into the system, but as that system has become more complicated and more laws have been enacted to criminalize behavior, most citizens do not have the knowledge necessary to fulfill that role.  Since all of their actions are taken in secret, and since they are never allowed to reveal what happened within the jury room, it is impossible to determine if they are working the way they were intended.

The most powerful office in the justice system, whose decisions carry the greatest impact and consequence, is still occupied by human beings, subject to all of the normal human failings.  In order to ensure that the power is used properly, sunshine, oversight, and accountability must become part of the system.

December 8, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Sunday, December 7, 2014

Two astute commentaries about California's emerging Prop 47 issues

0Two local California paper have two distinct commentaries about Proposition 47 and its aftermath. Both are worth reading, and here are links and excerpts from the start and end of each piece:

Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....

It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.

Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":

The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.

With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.

The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....

In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.

It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.

But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.

December 7, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Former basketball star taking (wild?) shot at fighting loss calculation in federal fraud sentencing

TateThis notable article from Connecticut reports that a notable fraud defendant is going to be representing himself as he agrues against how loss is being calculated and used against him in his upcoming federal sentencing.  Here are some of the interesting details:

Ever since being convicted on four felony counts in a real estate scheme, former University of Connecticut basketball star Tate George has been complaining about his legal representation.  He criticized his trial attorney, saying he didn't listen to requests for calling witnesses and other strategies.

After dropping his first attorney, George briefly switched to another, who is also out of the picture.  Now George has received permission from a federal judge to represent himself at his sentencing.

A first-round NBA draft pick, George has more basketball experience than legal experience.  He is best known for hitting "The Shot" at the Meadowlands arena in New Jersey in the final second to defeat Clemson in the NCAA playoffs in 1990, one of the most stunning victories in UConn basketball history.

Before his request was granted this week, federal prosecutors warned George in court papers about "the dangers and perils of self-representation."  They quoted the saying that "he who represents himself has a fool for a client."  Prosecutors told George, "There are many complex rules in court, and that most non-lawyers, including yourself, cannot know all of these rules."

But George, 46, has gone his own way before.  After expressing dissatisfaction with his trial attorney, George began sending letters directly from his prison cell to the federal judge instead of sending them through his attorney.  In at least five letters to U.S. District Court Judge Mary L. Cooper in Trenton, George proclaimed his innocence.

"I understand that my life has no value to all those who have gone about defaming my name, but I beg to differ and will continue to fight to prove my innocence," George wrote to the judge.  "Again, for the record, even though the government refuses to want to hear or admit to the truth above their lies to make me look guilty, there are no losses to report at this time, which means there is no crime or victims.  PERIOD! AS I HAVE SAID, BUT NO ONE SEEMS TO BE LISTENING, THERE ARE MONIES OWED YES, BUT NOT LOSSED!"

As part of his legal strategy, George is saying that the $250,000 investment by former UConn basketball star and NBA player Charlie Villanueva that was never repaid should not be counted as a financial loss.  Since he has promised to repay Villaneuva, George says there is no victim and no loss....  

George has said he was upset that his attorney, David E. Schafer, a federal public defender, said that investors in his case had lost $833,000 when George maintained that the actual loss was zero.  Federal prosecutors say the investors lost more than $2.5 million. At one point, a prosecutor described George as a "baby Madoff," referring to the massive Ponzi scheme operated by now-imprisoned New York City financier Bernie Madoff in which investors lost billions of dollars in a long-running scheme.

George was convicted in September 2013 and could face as many as nine years in prison when he is sentenced. Although he was convicted more than a year ago, his sentencing has been postponed multiple times.

December 7, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Blanket prohibition of tobacco now officially the law of the federal prisons land

As reported in this US News article, the "Federal Bureau of Prisons is officially banning smoking and possession of tobacco in any form by prison inmates."  Here is more:

The prohibition takes effect 30 days after publication of a final regulatory rule Monday in the Federal Register.  Prison guards still will be allowed to possess tobacco, but inmates will be permitted to smoke only for religious purposes.

“I’m a little surprised to be getting calls about this,” says Bureau of Prisons spokesman Ed Ross. Tobacco use by inmates, he says, is already banned in practice due to a 2006 policy taking tobacco products off the shelves of prison commissaries.  Cigarettes became contraband when commissaries stopped selling them, despite regulations technically allowing for outdoor smoking.

“If an inmate is found to be in possession of tobacco they are subject to discipline,” possibly including loss of phone or visitation privileges, Ross says. “I think it’s just formalizing the policy that’s in place.”...

Prisoners are historically more likely to smoke than the general public. Before the 2006 policy change, an estimated 60 to 80 percent of prison and jail inmates were smokers — far higher than the national average — alarming public health advocates who noted poor ventilation at facilities exposed nonsmokers to significant amounts of secondhand smoke.

But there's a flip side to banning tobacco.  The New York Daily News reported in 2013 tobacco prohibitions led to a surge in black market prices, with individual cigarettes selling for an average of $30 on New York City’s Rikers Island.  The Daily Beast reported the restrictions created a “cash cow” for prison gangs like the Aryan Brotherhood.

The new rule applies only to the 212,438 inmates housed in federal facilities. Many state and local jails, however, have independently banned tobacco use.

December 7, 2014 in Prisons and prisoners | Permalink | Comments (7) | TrackBack (0)

Friday, December 5, 2014

SCOTUS takes up new capital procedures case from Louisiana

As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure.  Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:

In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death.  In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.

Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds.  Brumfield was charged with killing the officer and wounding the store manager.

In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty.  The petition contended that he was entitled to a separate hearing on that question.  His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.

UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."

December 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

District Judge pushes federal prosecutors to back off extreme trial penalty sentence

As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:

Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.

Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday.  But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.

Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty.  "He won't look with pride on what you're doing here today," Sullivan said....

In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks.  Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.

In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.

They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.

After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.

December 5, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Thursday, December 4, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack (0)

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 in Booker in the Circuits, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack (0)

Nevada completes detailed accounting of costs of death penalty cases

As reported in this local article, headlined "High cost of death penalty could affect its future in Nevada," the Silver State's audits have recently completed a detailed report on how much taxpayer gold is typically spent in capital cases. Here are the details:

Nevada’s criminal justice system spends nearly twice as much handling death penalty cases compared with murder cases where capital punishment isn’t sought, according to a report released Tuesday by state auditors.

The state-mandated study, which surveyed data from 27 state and local agencies, gives ammunition to death penalty opponents who have failed to defeat public support for capital punishment using moral objections. It is, by far, Nevada’s most comprehensive study on the controversial practice and will serve as a law makers' guide for years to come....

Auditors assembled the 105-page report by sampling data from 28 cases, calculating costs associated with legal counsel — both defense and prosecution — as well as for money spent on court proceedings and incarceration.

Here are three highlights from the document's release:

From a suspect’s arrest through his or her final days behind bars, officials spend at least $1.3 million on murder cases where convicts are sentenced to death but not executed — that’s $532,000 more compared with murder cases where capital punishment wasn't sought. Litigation costs, including the trial and appeal phase, averaged about three times more for death penalty versus non-death penalty cases. And expenses are similar for all death penalty cases, regardless of whether a sentence is given or not.

Among all prison inmates convicted of murder, costs are highest for people on death row. There were 83 people sentenced to death in Nevada as of late last year. Prosecutors could have potentially saved an estimated $44 million by never pursuing corporal punishment in those cases....

Nevada's per capita death penalty rate ranks fourth in the country and tops Texas and California, according to the nonprofit Death Penalty Information Center. But the state's death chamber is seldom used, and only a dozen people have been executed since the U.S. Supreme Court reinstated the capital punishment in 1976. Of those, only one died against his will. The last execution in Nevada happened more than eight years ago.

It’s likely the study underestimated the cost of death penalty cases because of underreporting from government agencies....

The study’s findings fall in line with previous research examining the financial burden of capital murder cases — a study released this year by the Kansas Judicial Council found that defending a death penalty case costs as much as four times more than other murder cases.

Critics of the practice hope Nevada’s study will bolster efforts to erode support for capital punishment. “A lot of people who favor the death penalty think it’s cheaper,” said Las Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's meeting from Las Vegas. “Once people understand and they’re informed, maybe things will change.”

The full 100+ page Nevada legislative audit document released this week, which carries the exciting title "Fiscal Costs of the Death Penalty," can be accessed at this link.

December 4, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Wednesday, December 3, 2014

New report from Center for American Progress examines barriers for those with criminal records

Images (4)The Center for American Progress this week released this notable new report titled "One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records." Here is an excerpts from the report's introduction:

Between 70 million and 100 million Americans — or as many as one in three — have a criminal record. Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction.  Nonetheless, because of the rise of technology and the ease of accessing data via the Internet — in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society.  This has broad implications — not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.

Today, a criminal record serves as both a direct cause and consequence of poverty.  It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well.  It is a consequence due to the growing criminalization of poverty and homelessness.  One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society....

Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy.  Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product....

The lifelong consequences of having a criminal record — and the stigma that accompanies one — stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.

Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes — making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility.  The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class.  This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole....

This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.

Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidencebased approaches to public safety.  Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance.  Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.

December 3, 2014 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1) | TrackBack (0)

Some notable new postings at the Collateral Consequences Resource Center

Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars.  But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora.  And these recent postings seemed especially worth highlighting:

December 3, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit issues stay keepingTexas from executing mentally ill condemned murderer

As reported in this CNN piece, the Fifth Circuit today "stayed the execution of Texas death row inmate Scott Panetti, who was scheduled to be put to death at 6 p.m. Wednesday." Here is more:

Panetti's case has sparked debate for years over whether the state can execute someone who is severely mentally ill.  During his trial for the 1992 slayings of his mother- and father-in-law, Panetti represented himself — dressed in a purple cowboy outfit — and called Jesus, John F. Kennedy and the Pope to the stand.  The now-56-year-old was convicted of shooting them to death at close range, in front of his wife and daughter.

Panetti has suffered from schizophrenia for 30 years, his lawyers say, and he was hospitalized for mental illness numerous times before the murders.  Though Panetti received initial evaluations of his mental health, his state of mind has deteriorated, his lawyer Kathryn Kase said.  She noted in a letter to Texas Gov. Rick Perry that Panetti hasn't received a mental evaluation in seven years.  Kase asked that Perry grant a 30-day stay to the scheduled execution so that that an evaluation can be done to determine if he understands his punishment....

"If he's executed there should be a sense of outrage," said Ron Honberg, legal director for the National Alliance on Mental Illness.  "There's no question he's mentally ill.  If this happens, the message would be — 'we just don't care.'

"To execute him flies in the face of even supporters of the death penalty who say that it should be carried out with inmates who are the worst of the worst," Honberg continued.  "It would be much more compassionate and practical to spend money treating inmates with mental illness rather than execute this man."

The Texas Board of Pardons and Parole voted 7-0 to deny clemency in Panetti's case.  There is still an appeal before the U.S. Supreme Court, in addition to the appeal the U.S. Fifth Circuit Court of Appeals granted Wednesday.

December 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)

Praise for Texas justice embracing "Right on Crime" from across the pond

This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:

Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was.  Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do.  When they don't we punish them, but then we welcome them back and expect good behaviour again.  It's not naive, it's just clear.

For years that straightforward moral outlook translated into a tough criminal justice system.  As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket.  Texas, for instance, has half the population of the UK but twice its number of prisoners.

Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.

What Madden found was that too many low-level offenders were spending too long in prison, and not reforming.  On the contrary, they were getting worse inside and not getting the help they needed on release.  The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.  

But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab.   Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices.  Here, they believe, moral clarity and generosity are what's needed.

Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release.  Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.

The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen.  Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....

Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community.  This is the magic sauce of Right on Crime.

Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons.  I visited one by the Trinity River in Dallas, now ready for sale and redevelopment.  They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.

This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours.  It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.

December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

After numerous local, state and federal reforms, crime hits new record lows in biggest US city

Images (3)This new New York Times article reports on more good news about crime rates from the Big Apple.  Here are the encouraging details:

Mayor Bill de Blasio said on Tuesday that a city his opponents once said would grow more dangerous under his watch had, in fact, become even safer.

Robberies, considered the most telling indicator of street crime, are down 14 percent across New York City from last year.  Grand larcenies — including the thefts of Apple devices that officials said drove an overall crime increase two years ago — are also down, by roughly 3 percent.  And after a record­-low 335 homicides in 2013, the city has seen 290 killings in the first 11 months of this year, a number unheard-­of two decades ago.

“When I came into this job, people always talked about last year — last year was an amazing year in this city in terms of bringing down crime,” Mr. de Blasio said.  “We saw what was possible.  The city’s crime rate continues to go down.”

Even shootings, which had increased by more than 10 percent earlier this year, have receded amid a push by the Police Department to stamp out troublesome pockets of gun violence.  There were just over 1,000 shootings in the first 11 months of this year, about a 4 percent increase over last year....

For Mr. de Blasio and his police commissioner, William J. Bratton, the numbers provided a kind of cushion for the criminal justice and policing reforms that both men are putting into place.

Officers will this week begin a pilot program of wearing body cameras in three police commands, Mr. Bratton said on Tuesday, and a wholesale retraining of the department’s patrol force is also starting.  A new marijuana policy aimed at reducing low­-level arrests, which was announced in November, has already resulted in a 61.2 percent decline in arrests in its first two full weeks....

The decline in the city’s crime rate, while deeper in many categories than other cities, mirrors a nationwide downward trend from heights of violent crime in the 1990s.  How much any one mayor or one police commissioner has control over crime has remained a subject of debate.  Indeed, Mr. de Blasio pointed to 20 years of “momentum” that he inherited, referring to an “arc of continuous progress across different mayors, different commissioners.”  He expressed pride in the performance of the Police Department over the first 11 months of this year, and declined to describe the continued decline as vindication of his reform-­minded policies.  Others were more ready to do so.

“Bravo!” wrote Joseph J. Lhota on Twitter, who as the Republican candidate for mayor last year ran ads predicting a return to the crime-­plagued streets of the early 1990s if Mr. de Blasio were elected.

With a month still to go before the end of the year, the favorable crime numbers appeared to render a verdict on at least one question: Would a vast decline in the number of recorded stop­-and-­frisk encounters create an opening for violence to return?  So far, Mr. de Blasio and Mr. Bratton said, the answer has been no Mr. Bratton said that by the end of the year there would be fewer than 50,000 such stops, down from a high of over 685,000 in 2011.  That sharp decline, like crime over all, began well before Mr. de Blasio took office and has continued.

As the title of this post highlights, this great news on crime rates is also great news for those eager to encourage continued reform of state and federal criminal justice policies and practices. In addition to recent stop-and-frisk and marijuana policing reforms, New York five years ago reformed its draconian Rockefeller drug laws and the state's prison population has also been reduced significantly in recent years. And, of course, if many recent federal sentencing reforms were to have any significant impact on crime rates, we reasonably should expect New York City to be a window on this national story.

Critically, I am not trying to assert or even suggest that recent crime reductions are the result of all the criminal justice reforms of recent years. But I do mean to highlight and stress that it seems freedom has been significantly increased in the Big Apple without any apparent harm to public safety (and despite lots of folks claiming that criminal justice reforms would surely result in more crime). To paraphrase Old Blue Eyes, not only should everyone start spreading this news, but we should conclude that if we can make criminal justice reform work there, we can make it work just about everywhere.

December 3, 2014 in National and State Crime Data, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 2, 2014

"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements"

The title of this post is the title of this new article authored by Kevin Bennardo and published in the online complement to the Washington and Lee Law Review. (The Erwin case referenced in the title is a recent Third Circuit ruling discussed in this blog post titled "Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver.")  Here is the abstract of this new article:

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty.  A defendant’s breach of one should not affect the Government’s obligation to perform under the other.  All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance.  This intertwining undermines sentencing policy as set forth in the federal sentencing statute.  Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

December 2, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield

The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context.  Here is how the preview starts and ends: 

One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum.  [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another.  [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States  — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....

At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence.  Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case.  On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die.  And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.

UPDATE: Via SCOTUSblog, I see that the transcript in Whitfield v. United States is now avaiable here

December 2, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

"Actually, Blacks Do Care About Black Crime"

The title of this post is the headline of this notable new Slate commentary by Jamelle Bouie. Here are excerpts: 

In cities across the country, crowds are protesting police violence against unarmed black men. Demonstrators want justice, not just for Michael Brown, but for Eric Garner, John Crawford, and Tamir Rice, the 12-year-old boy killed by Cleveland police last month.  To that end, they’ve stopped parades and blocked highways in an effort to show the value of a black life.

But to some critics, this outrage is misplaced.  “Somebody has to tell me, something somebody needs to tell me why Michael Brown has been chosen as the face of black oppression,” said MSNBC’s Joe Scarborough on Monday morning, during his daily show.  His co-panelist, Donny Deutsch, agreed. “It’s not a black-white situation. It’s a thug-police officer situation,” he said. “Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?” wonders Deroy Murdock in a column for National Review. “One can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter,” writes Murdock, who doesn’t note that — in those cases — perpetrators are usually caught and convicted.  And then there’s former New York City mayor Rudy Giuliani, who—after President Obama spoke on Ferguson — told CNN that “[Obama] also should have spent 15 minutes on training the [black] community to stop killing each other.”

This basic question — “Where is all the outrage over black-on-black crime?” — is raised whenever black Americans protest a police shooting, or any other violence against unarmed black men.  “Nationally, nearly half of all murder victims are black,” wrote conservative commentator Juan Williams after Trayvon Martin was killed in 2012, “And the overwhelming majority of those black people are killed by other black people. Where is the march for them?”...

[L]et’s look directly at the question raised by Murdock, Giuliani, and Williams — “Do black people care about crime in their neighborhoods?” They treat it as a rhetorical concern — a prelude to broad statements about black American concerns. But we should treat it as an empirical question — an issue we can resolve with some time and research.

This isn’t as easy as it sounds. While blacks are more likely to face criminal victimization than other groups, that doesn’t tell us how black Americans feel about crime and where it ranks as a problem for their communities.  For that, we have to look to public opinion surveys and other research. And while it’s hard to draw a conclusive answer, all the available evidence points to one answer: Yes, black people are concerned with crime in their neighborhoods....

[W]hile black neighborhoods are far less dangerous than they were a generational ago, black people are still concerned with victimization.  Take this 2014 report from the Sentencing Project on perceptions of crime and support for punitive policies.  Using data from the University of Albany’s Sourcebook of Criminal Justice Statistics, the Sentencing Project found that — as a group — racial minorities are more likely than whites to report an “area within a mile of their home where they would be afraid to walk alone at night” (41 percent to 30 percent) and more likely to say there are certain neighborhoods they avoid, which they otherwise might want to go to (54 percent to 46 percent). And among black Americans in particular — circa 2003 — “43 percent said they were ‘very satisfied’ about their physical safety in contrast to 59 percent of Hispanics, and 63 percent of whites.”

More recent data shows a similar picture. In 2012, Gallup found that, compared to the general public, blacks were more worried about “being attacked” while driving their car, more worried about being the victim of a hate crime, and — most salient for our discussion — more worried about “being murdered.” Likewise, according to a 2013 survey for NPR, the Robert Wood Johnson Foundation, and the Harvard School of Public Health, 26 percent of black Americans rank crime as the most important issue facing the area they live. That’s higher than the ranking for the economy (16 percent), housing (4 percent), the environment (7 percent), social issues (4 percent), and infrastructure (7 percent). And in a recently published survey for Ebony magazine and the W.K. Kellogg Foundation, 13 percent rank violent crime as a top issue — which sits in the middle of the rankings — and 48 percent say that the black community is losing ground on the issue.

Finally, Atlantic Media’s “State of the City” poll — published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime.  Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police.  That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods.  And while “urban minority” includes a range of different groups, there’s a good chance this is representative of black opinion in some areas of high crime and victimization, given the large black presence in many American cities.

It’s important to note that this concern with crime doesn’t translate to support for punitive policies. Despite high victimization rates, black Americans are consistently opposed to harsh punishments and greater incarceration.  Instead, they support more education and job training.

Beyond the data, there’s the anecdotal evidence. And in short, it’s easy to find examples of marches and demonstrations against crime. In the last four years, blacks have held community protests against violence in Chicago; New York; Newark, New Jersey; Pittsburgh; Saginaw, Michigan; and Gary, Indiana. Indeed, there’s a whole catalog of movies, albums, and sermons from a generation of directors, musicians, and religious leaders, each urging peace and order. You may not have noticed black protests against crime and violence, but that doesn’t mean they haven’t happened. Black Americans — like everyone else — are concerned with what happens in their communities, and at a certain point, pundits who insist otherwise are either lying or willfully ignorant....

To that point, it’s worth noting the extent to which “what about black-on-black crime” is an evasion, an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law.

December 2, 2014 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack (0)