Tuesday, July 7, 2015

"Sex Offender Registries And Calls For Reform"

The title of this post is the title of this recent extended segment on NPR's Diane Rehm Show. Here is how the program is previewed and the guests on the program:

Sex offender registries are designed to protect the public from pedophiles and others who have committed sexual crimes. But some say those guilty of much lesser offenses don’t belong on the list. We look at sex offender registries and calls for reform.

Guests

  • Abbe Smith, professor of law and co-director of the Criminal Justice Clinic and E. Barrett Prettyman Fellowship program at Georgetown University; author of "Case of a Lifetime."

  • Jill Levenson, associate professor, social work, Barry University and clinical social worker

  • Brenda V. Jones, executive director, Reform Sex Offender Laws, Inc.

  • Victor Vieth, founder and senior director, Gundersen National Child Protection Training Center

July 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Still more interesting discussion of Glossip a week later

I have previously highlighted here and here and elsewhere a lot of the notable commentary that the Supreme Court's big Glossip death penalty ruling quickly generated.  I have now seen a few more pieces that seemed worth flagging here:

July 7, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

New research highlights racial and gender skew in elected prosecutorial ranks

Infographic-1As reported in this New York Times piece, headlined "A Study Documents the Paucity of Black Elected Prosecutors: Zero in Most States," new research spotlights that the persons most responsible for the administration of state criminal justice systems are likely the least diverse actors in the system.  Here are the basics:

Sixty-­six percent of states that elect prosecutors have no blacks in those offices, a new study has found, highlighting the lack of diversity in the ranks of those entrusted to bring criminal charges and negotiate prison sentences.

About 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men, according to the study, which was to be released on Tuesday by the San­Francisco­based Women Donors Network.  By comparison, white men make up 31 percent of the population of the United States....

While the racial makeup of police forces across the country has been carefully documented, the diversity of prosecutors, who many law enforcement experts say exercise more influence over the legal system, has received little scrutiny.  Prosecutors decide in most criminal cases whether to bring charges. And, because so many criminal cases end in plea bargains, they have a direct hand in deciding how long defendants spend behind bars.

“What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network, who led the study.

The data was compiled and analyzed by the Center for Technology and Civic Life, a nonpartisan group that specializes in aggregating civic data sets.  The Women Donors Network, which undertook the project, is composed of about 200 female philanthropists who promote a variety of causes, including diversification of elected officials by race, class and sex.

Researchers looked at all elected city, county and judicial district prosecutors, as well as state attorneys general, in office across the country during the summer of 2014. Kentucky had the most elected prosecutors, 161, and three states — Alaska, Hawaii and New Hampshire — had none.

The study found that 15 states had exclusively white elected prosecutors: Colorado, Connecticut, Delaware, Idaho, Maine, Montana, Nebraska, New Jersey, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington and Wyoming.  In Kentucky and Missouri, which also has more than 100 elected prosecutors, all but one was white, according to the analysis.  The study also found that 16 percent of elected prosecutors were white women, 4 percent were minority men and 1 percent were minority women.

“I think most people know that we’ve had a significant problem with lack of diversity in decision­making roles in the criminal justice system for a long time,” said Bryan A. Stevenson, the founder of the Equal Justice Initiative, a group that offers legal representation for poor defendants and prisoners. “I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.”...

Mr. Stevenson questions whether it is possible to diversify the ranks of prosecutors, given that most of them are elected and incumbents often serve long tenures.  With 85 percent of incumbent prosecutors re­elected without opposition, according to a study, sitting prosecutors will either need to start making diversity a priority in vetting their successors or the system will need to be significantly altered to give state bar associations and other legal entities more of a say, he said.

The new study did not look at federal prosecutors, who are appointed, or other state or local appointees.

This website provides colorful representations and related information about the study and data discussed in this New York Times article. This press release retreived via that webpage highlights these data points:

Other key findings of Justice for All*? include:

  • 3/5 of states, including Illinois, have no elected Black prosecutors.
  • In 15 states, all elected prosecutors are white. 
  • Outside of Virginia and Mississippi, only 1% of elected prosecutors are Black.
  • Latinos are 17% of the population, and only 1.7% of elected prosecutors.
  • Only in New Mexico are white men less than 50% of elected prosecutors
  • There is only one state (Maine) where the percentage of women prosecutors matches their percentage of the population (50%)

July 7, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

You be the judge: what federal sentence for evil cancer doctor?

Download (3)A few weeks ago, I was discussing with my kids whether they thought some humans were innately evil.  In any such discussion, it might make sense to bring up the story of the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  The doctor's federal sentencing began this week, and this AP story provides an overview of the proceedings and basic information to enable any would-be judges to suggest sentences for the doc in the comments:

Patients of a Detroit-area doctor received "stunning" doses of a powerful, expensive drug that exposed them to life-threatening infections, an expert testified Monday as a judge heard details about a cancer specialist who fleeced insurance companies and harmed hundreds of people.

Dr. Farid Fata is headed to prison for fraud and other crimes. But U.S. District Judge Paul Borman first is hearing from experts and former patients about the extent of his scheme to reap millions of dollars from Medicare and other health programs.

Nearly three dozen ex-patients and family members, many dressed in black, chartered a bus to attend the hearing, which could last days. Some will testify Tuesday."This is a small fraction of the people this guy has hurt," said Terry Spurlock, 52, of Holly, who had three more years of treatments after a tumor on his neck disappeared. "He gave me so much treatment, it stopped my immune system."

Fata, 50, pleaded guilty last fall to fraud, money laundering and conspiracy. The government is seeking a 175-year prison sentence, while the Oakland County man is asking for no more than 25 years.

The government said 553 people have been identified as victims, along with four insurance companies. There were more than 9,000 unnecessary infusions or injections. "There is an aggressive approach to treating cancer. This was beyond. This was over the top," said Dr. Dan Longo, a Harvard medical professor and deputy editor at the New England Journal of Medicine, who testified Monday as a $400-an-hour expert for prosecutors after examining 25 patient files, a tiny portion of Fata's practice.

Longo was asked about patients who were given a drug called Rituximab, which can weaken the immune system if overused. It is typically given eight times for aggressive lymphoma, but one patient got it 94 times. Another got it 76 times.... Later, he told the judge that "all the files I looked at had problems, but I would not say all the treatment was inappropriate."

It was the first time that many former patients had seen Fata in months, if not years. He has been in custody since his 2013 arrest. He wore a white dress shirt and dark suit in court.

"I wanted to knock that smirk off his face," said Geraldine Parkin, 54, of Davison, who[se] husband, Tim, has survived non-Hodgkin lymphoma but has other chronic problems because of excessive treatments. "He has a lot of anger," Parkin said.

July 7, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, July 6, 2015

Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?

The question in the title of this post is my post-holiday follow-up thought in light of my prior posts here and here and here concerning the uncertain (but surely significant) fall-out from the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Summarizing prior postings, I feel confident that, thanks to Johnson, there are now (1) many hundreds — perhaps many thousands — of current federal prisoners serving lengthy ACCA statutorily-mandated prison terms that are constitutionally suspect, and (2) many thousands — perhaps many tens of thousands — of current federal prisoners serving lengthy career-offender guideline-recommended prison terms that are now subject to a new kind of legal challenge.  This post seeks to know if any of these hundreds or thousands of federal prisoners have filed new Johnson-based challenges to their sentences yet.

Among the many reasons I am eager to follow this litigation closely and ASAP is because I see so much doctrinal and practical uncertainty, both substantively and procedurally, as to how this litigation may and should play out.   Indeed, uncertainty about the impact of Johnson is the only thing I am certain about, especially in light of some recent (conflicting?) analysis of post-Johnson litigation issues I have seen.  Consider, for example, the divergent analysis of post-Johsnon issues in this piece by Gray Proctor titled "Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?" and in this blog post by Steven Sady titled simply "Johnson: Remembrance Of Illegal Sentences Past."

Long story short, there is sure to be a long litigation story behind every prisoner's effort to use Johsnon to shorten his lengthy prison term.  Especially for the sake of those prisoners whose current sentences are now the hardest to justify, both legally and practically, I hope these long litigation stories are getting started ASAP.

Some prior posts on Johnson and its possible impact:

July 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (7)

"Dividing Crime, Multiplying Punishments"

The title of this post is the title of this interesting article by John Stinneford which was recently updated on SSRN. Here is the abstract:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will.

This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment.  A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice.  Prior to the twentieth century, if prosecutors proposed a novel unit of prosecution for a given crime, judges asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct?; and (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice?  If the answer to both questions was yes, judges would declare the punishment invalid under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity).  By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just. 

July 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Did Justice Department during AG Eric Holder's tenure really do "as much as [they] could" on criminal justice reform?

The question in the title of this post is my (somewhat muted) reaction to a key quote from this newly published Q&A interview with former Attorney General Eric Holder.  Let me quote the Q&A passage of interest here and then provide a somewhat less muted reaction thereafter:

Q: Back to the criminal side, during your tenure, you made criminal justice reform a big priority. Are you frustrated with how far you got or didn't get, and is that something you can work on at Covington also?

A: I'm actually kind of satisfied with where we got.  The job's not done.  You know, I think we did as much as we could using executive branch discretion, but now it's up to Congress to put in place measures that will last beyond this administration.  We made a sea change from the policies that I inherited and consistent with kind of my own experience as just a line lawyer at the Justice Department for 12 years.  Put more discretion in the hands of those line lawyers, who I have great respect for.  But now Congress needs to act.

I am happy and eager to credit former AG Holder for doing significant criminal justice reform work while heading the Justice Department through "executive branch discretion" on topics ranging from mandatory minimum charging policies to marijuana enforcement to drug sentencing reform advocacy.  But the claim that DOJ under AG Holder did "as much as we could" genuinely leads me to wonder, if being a bit intemperate, "What the **%&$^# are you talking about or smoking, Eric!?!?!?!?."  On "executive branch discretion" fronts ranging from implementing the Fair Sentencing Act to DOJ clemency policies and practices to executive branch advocacy in other branches, Holder's Justice Department could have (and, in my view, should have) done so much more to transform the modern structures and systems that have produced modern mass incarceration.

I am inclined to agree with former AG Holder that a "sea change" on criminal justice policies has transpired, but I believe AG Holder and his Justice Department were, generally speaking, much more content to ride along with the changing tides rather than taking a leading role in directing this change.  Consequently, in my view, a more fitting and honest statement from former AG Holder would have had him saying something like: "Given the limited political capital I was willing to spend on significant criminal justice reforms, especially during Prez Obama's first Term, and my own disinclination to lead on this front until I decided exactly when I wanted to resign, I think we ended up getting more done than some people might have expected and we effectively avoided stirring up too much political backlash (except from folks like Bill Otis)."

July 6, 2015 in Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access

ReligiousLibertyAs reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:

The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.

"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....

The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.

Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.

"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."

Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.

But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.

Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."

Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."

"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."

But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...

In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.

July 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Religion, Sex Offender Sentencing | Permalink | Comments (4)

Florida prosecutors (for suspect reasons?) seeking 2.5 years in prison for sex-on-beach guy

As previously discussed in prior posts linked below (starting with this one), a couple engaged in some consentual, but seemingly inappropriate, behavior on a public beach lead to a state criminal conviction and a seemingly extreme potentially mandatory imprisonment term for the fellow involved who had a criminal record.  This local article, headlined "Man convicted of sex on the beach in Bradenton Beach learns his punishment Monday," reports on where matters stand today on the morning of the (gentle?)man's scheduled sentencing:

The notorious Bradenton Beach sex-on-the-beach case is back in court Monday.

In a case that drew national and international attention, Jose Caballero, the man caught video having sex with a woman on Cortez Beach last July, will learn his punishment, after a jury found him and Elissa Alvarez guilty of two counts of two counts each of lewd and lascivious behavior. Prosecutors said soon after the verdicts were announced that they would not seek the maximum possible punishment: 15 years.

Alvarez, who didn't have a prior criminal record, in May was sentenced to time served since her arrest July 20, and required to register as a sex offender.

Prosecutors said last month they will recommend that Caballero, who previously served 8 years in prison for cocaine trafficking, be sentenced to 2 1/2 years in prison. He is currently in the Manatee County jail awaiting sentencing.

The tougher punishment, they said, is warranted because of Caballero's behavior before he was arrested on the beach. "We had a real good tone of what to give Ms. Alvarez after the case was over in terms of the testimony that came out, which created a vast difference in the demeanor that Mr. Caballero reacted to the fellow beachgoers versus the demeanor of Ms. Alvarez and how she reacted," said Assistant State Attorney Anthony DaFonseca, after Alvarez was sentenced.

Though I can understand, somewhat, why Caballero's criminal history might prompt prosecutors to seek a somewhat tougher sentence than his co-defendant received, I do not quite understand how the female defendant's "good tone" and distinct reaction justifies such an extreme different in recommended sentences. Ultimately, because I know very little about Florida sentencing law, I am unable to say with certainty that there is something problematic about the Florida prosecutors' recommended sentence here. But I do know 30 months is prison would be a pretty steep price to pay for some sandy sex.

July 6, 2015 in Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Former US District Judge Nancy Gertner talks about drug war casualties she had to create

As reported in this Atlantic posting, headlined "Federal Judge: My Drug War Sentences Were ‘Unfair and Disproportionate’," former US Strict Judge Nancy Gertner recently gave a provocative speech about her federal sentencing history and the impact of the drug war.  The posting provides a link to a video of the speech, and Conor Friedersdorf provides this summary account:

Former Federal Judge Nancy Gertner [recently] stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed. Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories –– to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”

No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

She went on to savage the War on Drugs at greater length. “This is a war that I saw destroy lives,” she said. “It eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums… and created an intergenerational problem –– although I wasn't on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”

She added that the War on Drugs eliminated the political participation of its casualties. “We were not leveling cities as we did in WWII with bombs, but with prosecution, prison, and punishment,” she said, explaining that her life’s work is now focused on trying to reconstruct the lives that she undermined –– as a general matter, by advocating for reform, and as a specific project: she is trying to go through the list of all the people she sentenced to see who deserves executive clemency.

July 6, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, July 5, 2015

Updates on pot prohibition reforms at end of weekend celebrating freedom

It seems only fitting to bring a July Fourth weekend to a close by linking to some recent posts of note from Marijuana Law, Policy and Reform that provide evidence of freedom on the march in a particularly notable arena: 

July 5, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"A Reassessment of Common Law Protections for 'Idiots'"

The title of this post is the title of this new piece by Michael Clemente recently posted to SSRN. Here is the abstract:

When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.”  On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.”

This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow.  It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities.  Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

July 5, 2015 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1)

New York Times reviews juve problems with modern sex-offender laws

The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:

Until one day in December, Zachery Anderson was a typical 19­-year-­old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semi­anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line.  They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14....  He was [later] arrested and charged and, after pleading guilty to fourth­-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes.  In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors.  Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...

There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses.  In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low­risk individuals to live in areas closer to schools and parks that were previously off limits.  Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.

Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”

Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”

Prior related post:

July 5, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Saturday, July 4, 2015

"Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"

The title of this post is the headline of this encouraging lengthy front-page New York Times article. Here are excerpts:

Sometime in the next few weeks, aides expect President Obama to issue orders freeing dozens of federal prisoners locked up on nonviolent drug offenses. With the stroke of his pen, he will probably commute more sentences at one time than any president has in nearly half a century.

The expansive use of his clemency power is part of a broader effort by Mr. Obama to correct what he sees as the excesses of the past, when politicians eager to be tough on crime threw away the key even for minor criminals.  With many Republicans and Democrats now agreeing that the nation went too far, Mr. Obama holds the power to unlock that prison door, especially for young African-­American and Hispanic men disproportionately affected.

But even as he exercises authority more assertively than any of his modern predecessors, Mr. Obama has only begun to tackle the problem he has identified.  In the next weeks, the total number of commutations for Mr. Obama’s presidency may surpass 80, but more than 30,000 federal inmates have come forward in response to his administration’s call for clemency applications.  A cumbersome review process has advanced only a small fraction of them.  And just a small fraction of those have reached the president’s desk for a signature.

“I think they honestly want to address some of the people who have been oversentenced in the last 30 years,” said Julie Stewart, the founder and president of Families Against Mandatory Minimums, a group advocating changes in sentencing. “I’m not sure they envisioned that it would be as complicated as it is, but it has become more complicated, whether it needs to be or not, and that’s what has bogged down the process.”...

“It’s a time when conservatives and liberals and libertarians and lots of different people on the political spectrum” have “come together in order to focus attention on excessive sentences, the costs and the like, and the need to correct some of those excesses,” said Neil Eggleston, the White House counsel who recommends clemency petitions to Mr. Obama.  “So I think the president sees the commutations as a piece of that entire process.”

The challenge has been finding a way to use Mr. Obama’s clemency power in the face of bureaucratic and legal hurdles without making a mistake that would be devastating to the effort’s political viability.  The White House has not forgotten the legacy of Willie Horton, a convicted murderer who raped a woman while furloughed from prison and became a powerful political symbol that helped doom the presidential candidacy of Gov. Michael S. Dukakis of Massachusetts in 1988.

But with time running short in Mr. Obama’s presidency, the White House has pushed the Justice Department to send more applicants more quickly.  Mr. Eggleston told the department not to interpret guidelines too narrowly because it is up to the president to decide, according to officials.  If it seems like a close case, he told the department to send it over.

Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”...

In his second term, Mr. Obama embarked on an effort to use clemency and has raised his total commutations to 43, a number he may double this month. The initiative was begun last year by James M. Cole, then the deputy attorney general, who set criteria for who might qualify: generally nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised rules....

Margaret Love, who served as pardon attorney under the first Mr. Bush and Mr. Clinton and now represents prisoners applying for clemency, said the process had become a mess. “It’s really poor management,” she said. “These are people who don’t have any history with sentence reduction. They’ve been putting people in prison all their lives. They don’t know how to get them out.”...

In December, Mr. Obama commuted the sentences of eight drug offenders, and in March he followed up with 22 more.  If he accepts most of the latest applications sent to the White House, some officials said it would probably double that last batch of 22, exceeding the 36 commutations Mr. Clinton issued at one time on his last day in office. Among those Mr. Obama granted clemency in March were eight prisoners serving life sentences for crimes like possession with intent to distribute cocaine, growing more than 1,000 marijuana plants or possession of a firearm by a convicted felon.

Needless to say, I am pleased to hear this report that dozens of additional clemency grants for nonviolent drug offenders may be coming soon from the Obama Administration.  But even if Obama were, after 18 months of lots of big talk about a clemency push, to now commute next week as many as 80 federal drug prisoners, this would still be not be as substantively consequential for the federal prison population as the 400+ drug defendants who will sentenced to lengthy federal prison terms the very same week!  Roughly speaking, in the months since the clemency talk got started, perhaps as many as an additional 35,000 drug offenders (many of whom are nonviolent) have been sentenced to significant federal terms. 

One of many reasons I have been distinctively skeptical and cynical concerning Clemency Project 2014 and related clemency work generated by the Obama Administration's clemency talk was my fear that Prez Obama would lack the courage and desire to commute many thousands of federal sentences. Practically speaking, unless and until the President starts talking about mass commutations, truly significant and consequential sentencing reforms and relief have to come from Congress, the Sentencing Commission or the courts.  (Indeed, rather than worry too much about clemency particulars, I wish the New York Times and all those concerned about mass incarceration in the federal system would focus on the profound impact that the Supreme Court's recent Johnson ruling could have if (and only if) Obama's Department of Justice and the US Sentencing Commission and lower courts apply it broadly and enhance its potential impact.)

July 4, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed

Download (2)Lots of folks are already spending lots of time seeking to summarize the Supreme Court Term just ended.  This Washington Post review, headlined "The court’s liberals prevailed in most important cases, but it may not last," provides one example of the left-right SCOTUS political accounting that is common around this time of year. Meanwhile, this NPR segment, headlined "'Fractures' In The Supreme Court Revealed In This Year's Decisions," discusses different divides among the Justices and gives extra attention to the Chief Justice as he wraps up a decade as our nation's top jurist.

For an especially dynamic take on the Term that was, I recommend this Slate SCOTUS Breakfast Table entry by Marty Lederman.  The piece explores the "biggest surprises" of the Term and begins with the observation that the "vast majority of the outcomes were predictable in light of the questions presented [as] at least 95 percent of the justices’ votes conformed to expectations." The piece goes on to explore the ocassional unexpected SCOTUS development and ends with a great account of "the single most surprising and heartening development of the term":

[I]n Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court....

This [concurrence] is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement — after many decades during which the court showed little or no inclination to do anything of the sort.  (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”  Yet here we are in 2015, and not much has changed — in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)

Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past.  There are several such cases currently being litigated in the lower courts, including in California and in Arizona.  Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term....

This is, I think, by far the most encouraging surprise of the term — the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer — as the court did this term — to securing the blessings of liberty to ourselves and our posterity.

I share Marty Lederman's perspective that Justice Kennedy's opinion in Davis could and should be the start of something big for further constitutional protection for those subject to the most extreme deprivations of liberty.  More broadly, as I reflect on those cases I am most likely to remember from the Term just concluded — from Obergefell to Johnson to Elonis to Yates (and perhaps even to Glossip) — I cannot help but see liberty as the biggest and most consistent winner.  So, as I finish up this post on the morning of the Fourth of July, I suggest that all devotees of our "nation conceived in liberty" (including Lady Liberty herself) should have an extra wide smile as we watch the rockets red glare tonight.

July 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, July 3, 2015

If you want to go on gorging on Glossip gossip...

here is still more of the copious commentary one can find as the work week closes on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline as with this prior review, sources and authors varied):

July 3, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 2, 2015

Making the forceful (and effective) case that modern bail systems operate unconstitutionally

EJUL-slide-3This recent Slate piece, headlined ""Is Bail Unconstitutional?: Our broken system keeps the poor in jail and lets the rich walk free," highlights some impressive efforts by impressive lawyers to litigate strategically modern problems in modern bail structures.  Here are excerpts:

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing.  If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300.  And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture.  Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional.  Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront.  The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to.  While the lawsuit against Dothan has not been dropped — Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent — it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more.  The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release.  Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.  “Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk — not how much money’s in their pocket.”...

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.  The reasons for this are strategic.  For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice....

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet — only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.  For now Karakatsanis is focused on taking incremental steps.  “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Varied perspectives on the varied challenges facing varied victims

I am sometimes inclined to say to my sentencing students that crime victims, especially victims of violent crimes, are often the most important and least understood players in the criminal justice system.  Helpfully, these two new lengthy and very different pieces about different violent crime victims can help enhance our understanding:

From the New York Times here, "Full Toll From Aurora Theater Shooting Goes Untold at Trial"

From Slate here, "He Killed Her Daughter. She Forgave Him. Linda White believes in a form of justice that privileges atonement over punishment. She practices what she preaches."

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 1, 2015

Despite Glossip, hope for judicial abolition of the death penalty endures

This new Slate commentary by Robert J. Smith highlights that, despite the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol, at least some still believe there could soon be five SCOTUS votes to do away with the death penalty altogether. The lengthy piece is headlined "The End of the Death Penalty?: Recent Supreme Court opinions suggest there are five votes to abolish capital punishment." And here is how it starts and ends:

On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate.  After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.”  But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question.  This case may become an example of winning a battle while losing the war.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments.  While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.”

They are not the first sitting justices to call capital punishment’s constitutionality into question.  Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment.  Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.”  Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment.

But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty....

[Justice] Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions.  For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice.  Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states.  Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.”

In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.)...

After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.

In a similar vein, Cassandra Stubbs, director of the ACLU Capital Punishment Project, has this new MSNBC commentary headlined "The death penalty has an innocence problem — and its days are numbered."

July 1, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

"Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"

The title of this post is the headline of this intriguing new BuzzFeed piece providing a "follow-the-money" update on who is really concerned about reversing or preserving the repeal of the death penalty in Nebraska.  Here are excerpts: 

After the Nebraska legislature successfully abolished the death penalty in the state, an expensive battle has begun to bring it back.  But so far, the side against the death penalty is winning the fundraising battle.  The money is all about the potential for a statewide vote on the death penalty.

In May, the state’s conservative legislature narrowly overruled Republican Gov. Pete Rickett’s veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back.  Nebraskans for the Death Penalty will need to collect 57,000 signatures by August to get the vote on the ballot.  If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in.

The group estimates that it would need to spend about $900,000 to do so....  [So far] Nebraskans for the Death Penalty raised $259,744 — and more than 75% of that came from the governor’s family. Ricketts and his father, the founder of TD Ameritrade, have given $200,000 to the group.  Another $10,000 was given to the pro-death penalty organization by an Omaha police union.

Nebraskans for the Death Penalty has spent almost all of the money it has currently raised in starting the signature collecting process.  The group has $26,000 in cash remaining, but has $25,000 in unpaid legal and consulting bills.

On the other side, Nebraskans for Public Safety (an anti-death penalty group) has not yet filed its full campaign finance report as of Tuesday evening.  But the group has disclosed receiving a $400,000 contribution from a progressive organization called Proteus Action League.  The group is a 501c(4), meaning it does not disclose its donors. This isn’t the first time Proteus Action League has spent money against the death penalty — the group spent more than $3.4 million on anti-death penalty efforts in 2012, according to an IRS filing.

The anti-death penalty group Nebraskans for Public Safety, which is affiliated with Nebraskans for Alternatives to the Death Penalty and the American Civil Liberties Union of Nebraska, has spent some of the money on television ads urging voters to not sign the petition.

Regardless of the outcome, Ricketts believes he will still be able to carry out the executions of the 10 men on death row.  In pursuit of that, his Department of Correctional Services has spent more than $50,000 on execution drugs from a seller based in India.

July 1, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the energies and intricacies involved in Clemency Project 2014

Download (1)The July 2015 issue of the ABA Journal has this very lengthy new piece reporting on the work of Clemency Project 2014.  The piece, headlined "Clemency Project 2014 is out to help prisoners doing excessive time due to inflexible sentencing," and here are excerpts:

[L]ast year, the Department of Justice announced an extraordinary project that could provide relief to ... perhaps thousands of [federal prisonsers]. In January 2014, the department announced a plan to shorten thousands of long sentences handed down for nonviolent drug crimes, using President Barack Obama's clemency power.

It's a radical departure from the way modern presidents have used clemency. Rather than correcting injustices here and there, the project seeks to systematically reduce sentences handed down during an era of inflexible sentencing.

Equally extraordinary was the Justice Department's call for help from the private bar. Because an influx of pro se petitions could overwhelm Justice's small Office of the Pardon Attorney, the DOJ asked private attorneys to volunteer their help.

Enter Clemency Project 2014. About 1,500 volunteer attorneys have come forward to help eligible prisoners submit the best possible clemency petitions. This small volunteer army is being led by five groups of criminal justice stakeholders: the American Bar Association's Criminal Justice Section, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, and a group of federal defenders—the heads of the 84 offices of federal public or community defenders.

"It is unprecedented, it is important — and the chance of a lifetime for a defense attorney to be able to walk someone out the prison doors this way," says Donna Lee Elm, the federal defender for the Middle District of Florida and part of the CP14 management.

Clemency cases move slowly; FAMM says an answer typically takes from two to seven years. But CP14 doesn't have that much time. Because the project relies on Obama's power to grant clemency — and there's no guarantee his successor will embrace the project — all decisions have to be made before January 2017.

That stress was increased last July when one fertile source of volunteers was cut off. A memo from the Administrative Office of the U.S. Courts forbade federal public defenders from actively representing CP14 clients, though they may still do administrative work. And although there is increasing bipartisan support for sentencing reform, CP14 has drawn criticism from both the right and the left. Among other complaints, critics say the federal government shouldn't allow nongovernmental groups to be so heavily involved in making policy....

CP14 relies on the constitutional power to grant clemency — pardons, sentence commutations and other actions that ease the consequences of a conviction. Though Obama's past statements have suggested he's concerned about unduly harsh drug sentences, he's made little use of his clemency powers. That's the case in general for presidents serving from 1980 onward....

Submissions come after a lengthy review process. Normally, clemency seekers submit their petitions directly to the [Office of the Pardon Attorney] OPA (either pro se or by using one of the few lawyers who specialize in clemency). An OPA lawyer then scrutinizes the petition closely, typically calling the prosecutor's office and judge involved in the original case for an opinion. Once that work is done, the deputy attorney general (currently Sally Quillian Yates) examines it and sends it to the White House with the office's recommendations.

Though petitioners are still free to take that direct route, those going through CP14 get additional review. For those without [any] close relationship to a former attorney, the process started with a survey sent out last year by the Bureau of Prisons, asking whether the prisoner meets the DOJ's clemency criteria. As of early June, CP14 had received more than 30,000 of them. Any volunteer attorney who has completed CP14's training — a six-hour online course — may take up one of those surveys. Volunteers dig through old documents to investigate whether the prisoner really meets the criteria, then create an executive summary. That goes to a screening committee, whose job is to thoroughly double-check whether the case meets the DOJ's criteria.

If the case gets through that round, it goes to a CP14 steering committee, which is responsible for ensuring that each of the project's five partner organizations is comfortable signing off on the case. That's a lot of layers of approval, but Felman says organizers felt each was necessary because they all have different functions. If the case is approved, the volunteer attorney drafts the actual petition. The petition goes to the Office of the Pardon Attorney with a cover letter from CP14, saying the project organizers believe this prisoner meets the criteria. From there, it's out of CP14's hands.

"I'm not saying that that [letter] gives that petition any special weight over there," Felman explained at the midyear meeting. "Our hope is it gives them a little more confidence. But there's no question that they will put it through their regular, routine process."

If the OPA approves a case, it goes to the Office of the White House Counsel. From there, Felman says, CP14 doesn't know what happens. Several emails to the White House press office were unreturned. Clemency Project 2014 petitions began going to the OPA at the end of 2014. In March, the president issued the first four commutations with project involvement, as part of a group of 22 commutations. Though it's hard for CP14 to predict what the president might do, Felman says he's been told the White House would like to start approving cases on a quarterly or even rolling basis. He notes that the March commutations were issued at the end of the year's first quarter and says he would not be surprised to see more issued at the end of the second quarter. This would be another departure from modern presidents' standard practice of granting clemency at Christmas or the end of their terms.

Even when petitions are approved, it's not clear whether clemency recipients will be able to go home right away. No government representative has commented on the issue, but Felman says CP14 has assumed the president will shorten sentences to what they would have been if handed out today. But the March commutations didn't follow that formula; all but one recipient were slated for release at the same time, in July....

[T]he loss of the defenders exacerbated another problem: insufficient volunteers. The project has quite a lot already — about 1,500 as of early June — and is recruiting from large law firms and law school clinics. But with roughly 30,000 prisoner surveys to review — and the end of President Obama's term looming — CP14 needs more.

Another problem, which is endemic to old cases, involves getting the paperwork. Because the Justice Department requires petitioners to have served at least 10 years in prison, the cases are at least that old. That makes it tough to establish a prisoner's eligibility, especially if no former attorney can forward the case file. Many of the cases require an in-person trip to a courthouse because older documents are not on PACER. Even tougher to get are the presentence investigative reports, or PSRs, which are usually sealed. Felman said at the midyear meeting that a handful of judges have denied requests to unseal them; and in one case, a prosecutor opposed it....

[C]ritics of CP14 aren't just law-and-order advocates. In fact, the project has been criticized by some of the most ardent supporters of clemency. On the political right, one critic has been Iowa Republican Sen. Charles Grassley.... Another conservative organization, the watchdog group Judicial Watch, has sued the DOJ under the Freedom of Information Act in an effort to get records of its communications with CP14 partner organizations. Judicial Watch president Tom Fitton says this is a rule of law issue. "There's this effort to abuse the clemency power of the president, to bypass Congress' sentencing laws," he claims. "The whole project by itself is an affront to the idea that the clemency power of the president is exercised on a case-by-case basis."...

Law professors Mark Osler of the University of St. Thomas (who runs a commutation clinic) and Rachel Barkow of New York University ... argued in a November Washington Post op-ed that the clemency process has far too many layers of bureaucracy and creates a conflict of interest because the Justice Department reviews convictions won by its own prosecutors. They called for a stand-alone, bipartisan agency like those used for clemency in many states.

Other critics from the left contend that the DOJ criteria leave too many prisoners out—particularly those who meet all criteria except the 10-year requirement. Felman says CP14 organizers pushed back a little on this issue, but to no avail.

Lots of prior related posts about Clemency Project 2014:

July 1, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 30, 2015

Might Pope Francis shame Prez Obama into doing more about mass incarceration?

The question in the title of this post is a bit of a riff off of this notable new commentary from Philadelphia magazine, headlined "Will the Pope Shame City Hall Into Fixing Its Atrocious Prison Problem?".  Here are excerpts:

The Cool Pope is visiting Philadelphia’s Curran-Fromhold Correctional Facility during his trip to the city this fall, the Vatican announced Tuesday.  

When Pope Francis tours the jail, he’ll find a prison system that has been sued over its crammed conditions almost non-stop for the past 45 years.  In fact, a judge ordered the city to build CFCF in the nineties in order to alleviate overcrowding.  Today, the city's prison system houses nearly 8,200 inmates — about 1,700 more than it was built to hold. At CFCF, 400 to 500 prisoners live in "triple cells," which are jam-packed, three-man cells that are intended to hold only one or two people.  

Will city officials allow the Pope to see the prison's lackluster conditions?  Will he pop into a triple cell?  Or will his impending visit pressure the city to finally get its stuffed jails under control?

We asked Mark McDonald, a spokesman for Mayor Michael Nutter, if there are plans to change the setup of CFCF or move inmates to other jails in the city's system during the Pope's visit.  "There are no plans to change the 'setup' at the prison.  The Pope will see the facility as it is.  He will visit with a group of inmates and also speak to a group of staffers," he said, adding, "No, inmates will not be moved from CFCF."

There's a good chance that this might light a fire under the city to cut down on the prison population, though.  Throughout Nutter's tenure, the city has taken several steps to reduce the number of inmates in the city's jails — and, at times, has been very successful.  In early 2011, the prison system's population fell to 7,700, a recent low. Still, it has never reached that magic number — 6,500, which is the maximum number of inmates that the system was constructed to hold — under Nutter.

The prison population has often fallen under Nutter shortly after the city has been sued due to overcrowding.  Likewise, it has risen after such lawsuits were put on hold.... Won't the upcoming visit by Pope Francis — and all of the international media attention that will come with it — give the city an even bigger incentive to cut down on overcrowding?...

It's also noteworthy that Pope Francis is touring CFCF, which opened in 1995 and is one of the city's newest prison facilities, as opposed to, say, the House of Correction, which is nearly 150 years old and lacks air conditioning.

My post title and question is actually prompted by the fact that I could not remember the last time Prez Obama (or, for that matter, any sitting or former Prez) ever visited a US prison.  Notably, as this article reports, Prez Obama did visit in 2013 the South African prison cell which long housed Nelson Mandela. 

As a general matter, I wonder if any Presidential historians can help me figure out if or how many sitting or former Presidents have ever made an official visit to a US prison or jail facility.  In the meantime, I will here call it notable and telling, and ultimately shameful, that modern mass incarceration in the United States apparently is more of a Papal than a Presidential concern.

June 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

If you are eager to gorge on Glossip gossip...

here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):

June 30, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality

As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross.  And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.  

Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.

The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.

June 29, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases

Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list.  At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.

Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions.  More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).  

June 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Prison Abolition and Grounded Justice"

The title of this post is the title of this newly published article by Allegra McLeod. Here is the abstract:

This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste.  Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others.  Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement.  Abandoning prison-backed punishment and punitive policing remains generally unfathomable.

This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination.  If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable.  But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration.

More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

June 29, 2015 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

June 29, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, June 28, 2015

When might a modern marijuana reform issue get on the SCOTUS docket?

The question in the title of this post is prompted not only by the fact that the Supreme Court is expected to issues its final opinions of the current Term on Monday, but also because some commentators have noticed parallels between quickly changing voter opinions and state laws on gay marriage and quickly changing voter opinions and state laws on marijuana.  Of course, the SCOTUS already has before it the challenge brought directly by Oklahoma and Nebraska assailing the spill-over harms from Colorado's reforms.  But I believe most informed Court-watchers expect that the Justices will refuse to hear the suit brought by Colorado's neighbors

While we all await the final rulings from SCOTUS on Monday and anticipate some future SCOTUS Term with cases addressing new modern marijuana reforms, here are some recent posts of note from Marijuana Law, Policy and Reform (including a few reporting on events that could generate some significant litigation): 

June 28, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

"Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice"

The title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice. Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.

June 28, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Gearing up for the next SCOTUS death penalty case while awaiting Glossip ruling

Though the Supreme Court has saved for last its decision in the still-pending Glossip case concerning execution protocols, I still am not expecting that Glossip will prove to be a blockbuster ruling.  I am guessing the decision will focus principally on Oklahoma's history with various execution drugs (and, if lower courts are lucky, will provide a clearer script for resolving Eighth Amendment challenges to execution protocols).  

Consequently, an especially for those who are even more concerned about the imposition of death sentences than how they get carried out, it is perhaps not too soon to look ahead to future SCOTUS death penalty cases.  One such case already on the near horizon comes from Florida, as this new local press article highlights.  The article is headlined simply "Fla. death penalty faces scrutiny from Supreme Court," and here are excerpts:

Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment....  Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute.  The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.

In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole.  In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.

But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death.  Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations. Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.

No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate.  The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present.  The association wants the high court to require jurors to unanimously agree on the imposition of death sentences....

The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death.  Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional.  The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision....

The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations.  But state lawmakers didn’t act.  In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional.  One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998....

At the conclusion of the second sentencing hearing [in Hurst's case], jurors returned a verdict of 7-5 in favor of death.  Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.

The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.

Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty.  After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled.  The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.

Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.

June 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, June 27, 2015

"Will New Bipartisan Criminal Justice Reform Plan Fly?"

The question in the title of this post is the headline of this notable new Crime Report piece by Ted Gest discussing the prospects for the newly introduced SAFE Justice Act (basics here). Here are excerpts:

As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.

They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)...

Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a "major driver" of the federal prison count, although he conceded that no one know how many such cases are filed.

Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation's high incarceration rate "generates more crime than it stops."

One notable aspect of yesterday's announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.

Helpfully, this article provides this link to this full text of the new House proposal which is formally the "Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015."

Prior related post:

June 27, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?

Gay Prison MarriageLots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges.  But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns. 

As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14).  Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."

Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")

June 27, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (15)

A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson

As noted here, the US Supreme Court issued a (very?) big constitutional criminal procedure ruling today in Johnson v. US.  I will need at least a few hours (if not a few days and certainly many reads) to really figure out how big a deal Johnson is.  But I can and will here, at the risk of prioritizing speed over accuracy, quickly type out the first big 5 thoughts that have come to mind concerning the  line-up of jurists in the Johnson ruling:

1.  It is truly amazing (and quite significant) that Justice Scalia was able to convince five of his colleagues (including three of the four newer Justices) to issue a big pro-defendant constitutional criminal procedure ruling in Johnson.

2.  It is very significant that Chief Justice Roberts joined Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

3.  It is interesting that Justice Kennedy briefly concurred separately and did not join Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

4. It is notable that the concurrence authored by Justice Thomas is longer than the majority opinion (and I suspect it was going to be the opinion for the Court before Justice Scalia convinced his colleagues to order rehearing on the constitutional issue the majority addressed).

5. It is not at all surprising Justice Alito alone dissents, and I may start formally counting how many (non-capital) criminal cases have been (and will in the coming years) be defined by that reality.

June 26, 2015 in Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"A Second Chance: Rebiography as Just Compensation"

I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it.  The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within.  Here is the abstract:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances."  For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation.  Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender?  In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation?  Secondly, what is the relationship between "rebiography" and "privacy"?  In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.

Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.”  In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases.  In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism.  The article goes on to examine legislative and judicial options for rebiography.

June 26, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Thursday, June 25, 2015

Seeking SCOTUS predictions: what should we now expect in Glossip and Johnson?

I feel like the Supreme Court did me a solid this morning by deciding two non-criminal cases and continuing to keep everyone waiting for the two sentencing cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act.  I say that because I am due to be off-line and out-of-the-office most of the rest of today, and I am somewhat relieved I do not yet need to read and react to the (many divided and lengthy?) opinions to come from the Justices in these two cases.

In part because I am going to be off-line for a while, and in part because SCOTUS gave us a few more tea leaves to read with its rulings today and earlier this week, I am eager to hear from folks about what they are now expecting in Glossip and/or Johnson.  I think it is now a near certainty that we are going to get (deeply?) divided rulings in both cases, and I have long assumed Glossip would come down to a 5-4 vote and that Johnson might end up the same.  But as the days go by without a ruling, I am getting more and more excited (or should I say concerned) that both Glossip and Johnson will be big, lengthy and consequential.  

Do others agree?  Do folks expect the rulings tomomrrow?  Monday?  Later?

Do folks now have predictions about who will be writing for the Court and will be writing the main dissents in each case?

Does anyone share my fear that we might get a badly splintered Court in both cases?

June 25, 2015 in Who Sentences? | Permalink | Comments (11)

Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016

This notable new USA Today article, headlined "'The clock is running' on Obama clemency initiative," reports that the various administrative and practical difficulties encountered (and self-created?) by those trying to get Prez Obama more good clemency case are now seemingly at risk of completely "screwing the pooch" on the whole clemency push.  Here are the discouraging details:

The Obama administration is urging lawyers for federal inmates to move more quickly in filing petitions for presidential clemency, reminding them that "the clock is running" on the Obama presidency. The new urgency from the Justice Department comes more than a year into a program intended to shorten the sentences to federal inmates who would have gotten less time under current law.

That clemency initiative was coupled with the Clemency Project 2014, an outside consortium of lawyers working on those cases. But the Clemency Project filed only 31 petitions in its first year, leading to criticism from some proponents of criminal justice reform that the process is moving too slowly.

"If there is one message I want you to take away today, it's this: Sooner is better," U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week. "Delaying is not helpful." Leff is the Justice Department official who provides recommendations on commutations and pardons to the president, who under the Constitution has the power to shorten sentences for federal crimes and to restore other civil rights....

The Clemency Project has set a goal of Jan. 20, 2016, for all petitions to be filed, to give the Obama administration a full year to consider them and send them to the president's desk for a decision before his term ends. Leff said any petitions that come in after that date could be left to Obama's successor. "So if we receive an enormous number of petitions at the last minute, yes, they will be reviewed. But a lot of them will not be reviewed during this administration," she said.

She also suggested that attorneys were spending too much time on cases. "While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages," she told the lawyers.

Another problem is paperwork. The Office of the Pardon Attorney requires the pre-sentence report for every inmate, but that can involve a complicated process of court approval. "It's been a real bottleneck to get these documents into the hands of the lawyers," said James Felman, a Tampa attorney who chairs the criminal defense committee of the American Bar Association. So the Clemency Project has now streamlined that process, allowing the Bureau of Prisons to supply that document unless a judge objects.

Felman said lawyers also need to understand that they're asking the president for mercy, and so need to be forthright about the strengths and weaknesses of the case. "Aggressive lawyering is not necessarily going to pay off," he said. The cases don't have to be perfect. Felman said the Justice Department has signaled a willingness to consider cases that don't meet all of the criteria. "Some of the criteria are less definite than others. Like, for example, a clean record in prison. Nobody has a perfect record in prison," he said.

And the Justice Department said that even cases that aren't appropriate for the clemency initiative — which is intended for people who have already served at least 10 years — will still get consideration. "In addition to the president's clemency initiative, he continues to consider commutations under the traditional criteria for clemency," said Justice Department spokeswoman Dena Iverson. "Every applicant for clemency receives an individual review."

Margaret Love, a Washington attorney who had Leff's job in the Clinton administration, said she worries that an emphasis on the volume and speed of cases could compromise the ability of attorneys to make the best argument for their clients. "What I heard was hurry up, hurry up, deliver as many cases as quickly as you possibly can," she said. "If it's true that there were only 31 cases submitted by the project by the end of May, that's surprising given the number of lawyers they have working on them."

Regular readers know that, ever since Prez Obama and his Aministration started talking up an effort to get serious about using the clemency power seriously, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored this new (and now not-so-new) clemency push has been. My particular worry, which is exacerbated by articles like this one and other similar reports, has been that a robust effort by defense lawyer groups to (1) review the complete files of, and (2) provide trained lawyers for, and (3) present a complete and extensive argument/application for, any and every federal prisoner who might want to pursue a clemency application could create a whole lot of costly and time-consuming busy work with few real substantive benefits. This is especially so given that, as all serious federal clemency advocates should know, the Pardon Attorney's Office has historically always taken its sweet time to assemble and review the files of any clemency application and will always (and justifiably) be wary of relying on just the information and representations made by a clemency applicant and is lawyer.

That all said, I remain hopeful that all the hard work being done by all the groups and lawyers involved in Clemency Project 2014 will prove meaningful and valuable and will ultimately enable Prez Obama to live up to his promises to get serious about using the clemency power seriously before he leave office in January 2017. But that might now require those working on Clemency Project 2014 to get serious about getting their applications submitted ASAP rather than continuing to spend time letting the perfect be the enemy of the good enough in this arena.

Some prior related posts:

June 25, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Highlighting the need for much better modern prison metrics

Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:

The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.

Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.

Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.

Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.

Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.

A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....

The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?

Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.

The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.

June 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Examining federal death row as Dzhokhar Tsarnaev becomes its newest (and youngest) member

The new NBC News piece, headlined "Tsarnaev Joins A Death Row With Many Members, And Few Executions," reviews some realities of federal death row in the wake of yesterday's formal capital sentencing of the Boston Marathon bomber. Here are excerpts:

Now that he's been formally sentenced to death, Boston Marathon bomber Dzhokhar Tsarnaev will soon become a resident of federal death row, joining 61 other killers who've been condemned to die by lethal injection at the U.S. Penitentiary in Terra Haute, Indiana.

There he will wait — likely for a very long time. Just how long depends on a range of factors, mainly the strength of his legal appeals. But it's safe to assume that, provided the appeals fail, it will be several years before he is put to death.

Despite the name, there isn't much death on death row. Since the federal government reinstated the death penalty in 1988, 75 inmates have ended up on death row, according to the Death Penalty Information Center. Ten have been removed, and only three have been executed.

The last man to die there was Louis Jones Jr., in 2003, eight years after he was sentenced for murdering a U.S. soldier.  The other two, marijuana kingpin Juan Raul Garza and Oklahoma City bomber Timothy McVeigh, waited eight years and four years, respectively, for their executions.  

That leaves 61 men and 1 woman still on federal death row, including two people whose original conviction or sentence has been reversed but their legal fate has not yet been finalized. Tsarnaev, 21, is the youngest.

He'll join a cast of violent men at Terra Haute — the one woman on death row, Lisa Montgomery, who killed a pregnant woman and cut her unborn baby out of her womb, is serving her remaining days in the Federal Medical Center Carswell in Fort Worth, Texas....

The longest current residents of death row are Corey Johnson, James Roane Jr. and Richard Tipton, fellow gang members who were sentenced to execution in 1993 for nine murders committed to protect their crack dealing operation. The newest — before Tsarnaev — is Thomas Sanders, who was sentenced to death in September for kidnapping and killing a 12-year-old girl.

It is often said that justice delayed is justice denied.  As this article highlights, if you embrace that aphorism, federal death row is locale which has been experiencing a whole lot of justice denied in recent times.

June 25, 2015 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (3)

Noticing Senator Cornyn's notable role in federal criminal justice reform efforts

ImagesRegular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair.  But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip.  Here are excerpts from an interesting piece about Texas Senator John Cornyn:

On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.

"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."

Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.

On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.

"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."

"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.

Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.

Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.

Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."

"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."

June 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"A Shrinking Texas Death Row"

The title of this post is the headline of this intriguing new item from the Texas Tribune.  The piece has a series of great interactive charts providing the details on this basic death-penalty data story:

The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.

The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year.  So far this year, nine inmates have been executed.

The main reason is a drop in new death sentences.  In 1999, 48 people were sentenced to Texas death row, according to BJS data.  In 2008, that number was nine — and has stayed in that range ever since.  This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).

Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant.  “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."

Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions.  In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.

But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants.  Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....

Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ.  Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.

Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates.  So far this year, Kase said three death penalty cases have gone to trial.  All have ended with life-without-parole sentences.

June 24, 2015 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission

I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website.  Here is the text of the alert I received (along with relevant links):

Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels.  This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment.  Read the report.

For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”

The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle.  Public comment is due on or before July 27, 2015.  More information

There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,

June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)