Thursday, January 21, 2016
"Why hasn’t President Obama granted clemency to a single Latina inmate?"
The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:
Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation. Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....
On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime. In total, I spent 17 years behind bars for a crime committed at age 21. I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.
But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina. Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population. They are three times more likely to go to prison than white women. And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007. There’s no shortage of worthy Latina candidates for a presidential clemency.
Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston. Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.
Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing. Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years. And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.
President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing. One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well. To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.
The War on Drugs should be called the War on Minorities. Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children. Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color. Brown lives matter, too.
A much deeper (too deep?) dive into mens rea and its place in criminal justice reform
As regular readers should now know, debate over mens rea reforms for federal offenses has become the latest hot-button issue in the extended discussions inside the Beltway concerning statutory federal sentencing reform. On the terms of the statutory debate in Congress and with the White House, the federal mens rea debate is quite interesting and important. But this interesting new commentary by sociology professor William Kelly, titled "Rethinking Criminal Intent: Why 'Mens Rea' Matters," provides an even richer perspective on what deeper mens rea concerns might entail. I recommend the full piece, and here is a taste:
I believe the debate has so far sidestepped one of the more troubling impacts of mens rea on our justice system. I agree that there is a valid question about whether citizens can be aware of all federal crimes. But the problem associated with mens rea is much broader than just the question of whether someone is “knowingly” breaking the law. My concern is with the psychological, neurological, psychiatric, and intellectual ability or capacity of many offenders to form the required criminal intent.
Criminal intent or criminal responsibility requires awareness, conscious will, volition, and rational decision making. There is a routine presumption, which is rarely challenged, that criminal offenders have the ability to form intent. I challenge that presumption. Here is why.
Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem. The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.
Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law. How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.
In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement. If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.
Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.
It has also contributed to our recidivism problem. When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.
"Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition"
The title of this post is the title of this provocative new article available via SSRN authored by Jerg Gutmann. Here is the abstract:
It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science.
This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.
Wednesday, January 20, 2016
"Free computers for inmates? It’s latest deal at Sacramento County jail"
The title of this post is the headline of this encouraging Sacramento Bee article which reinforces my long-standing belief that lots of modern technology could and should be put to good use in our not-so-modern jails and prisons. Here are excerpts from the piece:
On the surface, the notion seems preposterous: Hand out Samsung computer tablets to dozens of Sacramento County Main Jail inmates. But 40 of the tablets have been in use at the Main Jail downtown for two months, and officials say they have had virtually no problems. Inmates have used them to take classes toward high school diplomas, for parenting and domestic violence courses and, once they have earned enough points from studying, to watch preapproved movies or listen to music.
The project, which officials hope soon will offer 500 tablets to inmates, is similar to others that have been launched in jails nationwide and is not costing taxpayers a dime, sheriff’s Sgt. Brian Amos said. Instead, the tablets, which cost about $200 each, are paid for through an inmate fund that collects revenues from commissary and other purchases. “An inmate can work on their GED, they can take anger management classes,” Amos said as he stood on the fifth floor of the jail Thursday as inmates drifted toward a table holding dozens of tablets and earphones. “There’s even parenting classes. We had an inmate here during this pilot who was learning how to fix carburetors on a car or fix brakes. There’s thousands of hours of content.”
The computers cannot be used for email or be hooked up to wireless Internet, Amos said. Instead, they can only connect with a secure network operated by a Chicago-based company called Edovo that offers the service. If someone somehow managed to hack into the system, “they’d end up at Edovo,” Amos said.
Although Amos acknowledges the notion originally worried some deputies at the jail, which houses about 2,000 inmates, the pilot program has proved to have a calming effect on inmates who have been given access to the devices. On two visits last week to the day room where the devices are being used, there was something present that is entirely out of the ordinary for the cacophonous jailhouse: silence.
Jason Rogers, 43, who has been in the jail for eight months on drug charges, sat with one of the tablets studying a chapter book and taking notes on a pad. “I think it’s great,” Rogers said, adding that he has used the device to study current events, such as the ongoing war in Syria, or to watch movies. Without access to a tablet, Rogers said, he’d most likely be writing letters or watching television in the day room.
Steve Wilson, 52, who is awaiting the results of an appeal on a federal white-collar crime case, said he uses the devices to listen to TED talks and watch documentaries. In a previous stint at the jail while awaiting trial, Wilson said disputes among bored inmates were common. “At least twice a week, when those doors popped open, there was a fight,” Wilson said. “Now that I’m back I haven’t seen a fight yet. People are taking their issues and instead of taking it out on each other, they have a mechanism of escape where they can bury themselves into that. And there’s going to be more, there’s going to be games, there’s going to be magazines.”
The tablets, which officials say can also be used to eliminate paperwork by allowing inmates to request medical care or to read up on jail policies and procedures, are designed so they cannot be altered to allow communication with the outside. “You’d have to be a genius to figure out how to do that,” Rogers said. The seven-inch tablets cannot be taken into cells, and must be locked in a charging cart at night.
Deputy Brent Snyder, who was watching over inmates on Wednesday, said he was skeptical when he heard inmates would be given access to the small computers, noting that he wanted assurances they could not access the Internet or communicate outside the jail. Since then, Snyder said, he has been won over by the program and the effect it has had on inmates. They are calmer, quieter and eager to use them to study and to listen to music ... and officials say they do not expect any serious violations because the inmates do not want to lose their access to the devices.
Edovo and its tablet programs are the brainchild of Sacramento native Brian Hill, a 2002 Del Campo High School graduate who says his company has about 1,000 tablets in fewer than 10 facilities nationwide, but expects to more than double that in the coming year. As prisons and jails try to focus more on reform than simply punishment, the need for programs that can be made available to inmates is greater than ever, Hill said, and the use of tablets can help. “You’ve got 2 million people behind bars in the nation watching daytime television,” Hill said. “That’s not a recipe for success. With this, there’s a window, there’s a chance for success.”...
The tablets are encased in hard plastic that protects them and prevents them from being opened by inmates. And, Hill said, if someone smuggled a cellphone or other device into the jail and hacked into the secure system, they would only gain access to the coursework Edovo offers. “It’d be the most depressing hack ever,” he said. Hill acknowledged that there is hesitation from some — especially guards — when they first hear about the program. “It generally takes about five minutes,” Hill said. “The minute you see it live and 100 inmates put on headphones and they are quiet for six hours, it really changes people’s perspectives.”
Such programs have been put into use from San Francisco to Pennsylvania using iPads and other tablets and are generating a surprisingly positive response from some. “It’s a good thing,” said Christine Ward, executive director of the Crime Victims Assistance Network Foundation in Sacramento. “I know you don’t often hear that from me.” But, Ward said, as long as inmates are being held accountable for their crimes, it is important for institutions to offer prisoners the ability to improve and educate themselves.
Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney
I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:
The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.
The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.
The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly. Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.
Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”
A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.
Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eggleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....
A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....
“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”
Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....
Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”
I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office. I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention. But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).
Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures
Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences. The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp. Here are excerpts from the start and body of the opinion highlighting these realities:
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....
As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....
Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....
The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....
Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).
The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.
Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
This new National Review commentary authored by James Copland and Rafael Mangual, headlined "On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility," levels complaints at the Obama Administration for complaining about mens rea reform efforts in Congress. Here are excerpts:
In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas....
Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills [introduced in the House and Senate]. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”
These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.” To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets. But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.
In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor. It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.
Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.
The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.
If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
Tuesday, January 19, 2016
New FBI data indicates violent crime up, property crime down in first half of 2015
This new official FBI press release reports on preliminary crime data for the first six months on 2015, and the basic story is not encouraging. Here are the details via the parts of the release:
Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall declines in the number of property crimes reported and overall increases in the number of violent crimes reported for the first six months of 2015 when compared with figures for the first six months of 2014. The report is based on information from 12,879 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2014 and 2015.
All of the offenses in the violent crime category — murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery — showed increases when data from the first six months of 2015 were compared with data from the first six months of 2014. The number of rapes (legacy definition) increased 9.6 percent, the number of murders increased 6.2 percent, aggravated assaults increased 2.3 percent, the number of rapes (revised definition) rose 1.1 percent, and robbery offenses were up 0.3 percent.
Violent crime increased in all but two city groupings. In cities with populations from 50,000 to 99,999 inhabitants, violent crime was down 0.3 percent, and in cities with 500,000 to 999,999 in population, violent crime decreased 0.1 percent. The largest increase in violent crime, 5.3 percent, was noted in cities with 250,000 to 499,999 in population.
Violent crime decreased 3.3 percent in non-metropolitan counties but rose slightly, 0.1 percent, in metropolitan counties.
Violent crime increased in all but one of the nation’s four regions. These crimes were down 3.2 percent in the Northeast but increased 5.6 percent in the West, followed by rises of 1.6 percent in the South and 1.4 percent in the Midwest.
In the property crime category, burglary offenses dropped 9.8 percent, and larceny-theft offenses decreased 3.2 percent in the first six months of 2015 compared with the same months from 2014. Only motor vehicle theft showed an increase (1.0 percent).
Each of the city population groups had decreases in the overall number of property crimes. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 7.1 percent.
Property crime decreased 12.3 percent in non-metropolitan counties and 6.0 percent in metropolitan counties.
The West was the only region to show an increase (2.4 percent) in property crime. Reports of these offenses declined 8.0 percent in the Northeast, 7.0 percent in the Midwest, and 6.4 percent in the South.
Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform
This new article from Roll Call, headlined "Former Officials Press Senate for Sentencing Bill Vote," reports on the latest inside-the-Beltway federal sentencing reform development. Here are the basics:
Dozens of former federal prosecutors and government officials sent a letter to the Senate leadership Tuesday urging a vote on a bipartisan bill to overhaul the nation’s criminal sentencing laws.
The letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., seeks to counter concerns about the bill (S 2123) and instead focus on improvements it makes to the corrections system. “Otherwise, good policy reforms could easily fall victim to politics and fear,” the letter states.
Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, several former U.S. attorneys and several federal appeals court and district court judges....
McConnell, who makes the decision about floor votes, has not said if the Senate will vote on the bill. Majority Whip John Cornyn, R-Texas, a co-sponsor, has said that would happen in 2016. Judiciary Committee Chairman Sen. Charles E. Grassley, R-Iowa, is also pressing for a vote soon.
The momentum for a sentencing overhaul bill faces a challenge because of the tight schedule in an election year and the possibility that the Republicans won't retain their Senate majority. There is also opposition, including from a separate group of former federal prosecutors who sent a letter to leadership in December with concerns about the bill.
The letter sent by Mukasey and others Tuesday seeks to counter those concerns. It says the bill makes “modest, reasonable changes” that would amend “just a few sentencing policies that produced unintended consequences and created imbalance in the scales of justice.”
The bill ties longer mandatory minimum prison sentences to high-level drug traffickers and violent criminals, gives prosecutors new tools to seek enhanced penalties for violent criminals and gives federal prisons a way to make the public safer by reducing the number of inmates who commit crimes once released from their sentence.
“A drug dealer using a gun will still be subject to a significant mandatory minimum sentence for use of the firearm plus additional time for the underlying drug offense,” the letter states. “And since the Department of Justice has committed to a case-by-case review to ensure that any resentencing is done carefully and with complete transparency, offenders who pose a threat to public safety will not be released early.”
Having former GW Bush Attorney General Mukasey on this pro-reform letter strikes me as quite significant because he has been seemingly hesitatant to support big sentencing reforms in the recent past. I doubt this letter itself will dramatically change the political and practical dynamics of getting federal sentencing reform done in the coming months, but advocates of reform shold certainly be glad to have former AG Mukasey now on the reform bandwagon.
UPDATE: The letter signed by former AG Mukasey reference above is available at this link. Another similar letter urging federal sentencing reforms addressed to both House and Senate leaders signed by over 70 prominent police chiefs and federal prosecutors is available at this link. In addition, this new Politico article, headlined "GOP split threatens sentencing overhaul," reports on the state of play in the Senate. Here is how it starts:
Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.
Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.
Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:
From the Orando Sentinel here, "Florida death penalty experts disagree on who will be spared execution"
From the Florida Times-Union here, "Courts face dilemma with Donald Smith and other death-penalty cases coming up after Supreme Court ruling"
As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in. Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
SCOTUS grants cert on two more criminal cases (and on Obama's immigration policies)
Big news this morning from the Supreme Court is reported in this new SCOTUSblog post from Lyle Denniston:
The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Monday. The case will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.
I suppose sentencing fans can and should be interested in the range of (quasi-?)criminal justice aspects of the law and policy involving immigration. But I am more revved up by this new SCOTUS order list because cert review was also granted on two new federal criminal cases, one of which appears to involve insider trading, the other another ACCA dispute. I hope to have more information on these grants this afternoon after I deal with some morning off-line commitments.
UPDATE: The SCOTUSblog post linked above now has this additional brief descriptions of the other cert grants this morning, together with helpful links to the SCOTUS pages on each case:
Besides the immigration case, the Court on Tuesday accepted review of three other cases: a significant new case on insider trading in securities (Salman v. United States, grant limited to Question 1 in the case); a plea for further clarification of the enhanced sentences available under the federal Armed Career Criminal Act (Mathis v. United States), and the power of a judge, after dismissing jurors in a case, to recall the jury for further deliberation (Dietz v. Bouldin).
As always, I would be grateful for early reader perspectives on which of these cases ought to garner extra attention in future weeks (and posts).
Monday, January 18, 2016
Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms
Long-time readers likely know that I have long stated in this space that I think Martin Luther King, whom we all should take time to honor today, would have been concerned with criminal justice and especially sentencing issues if he had lived into the modern era of mass incarceration. I also have a tradition of spending MLK Day listening to the full legendary "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. And as I was listening to the speech this year, more than a few lines had a timely resonance in light of on-going efforts to move forward with modern criminal justice reforms. Here are some of the lines catching my ear today:
We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.... Now is the time to make justice a reality for all of God's children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality....
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom.
One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American's freedom. These beliefs keep me ever engaged in the struggle for an ever-sounder criminal justice system, keep me ever committed to the "fierce urgency of now," and keep me ever eager to encourage all to seek to satisfy the thirst for freedom without "drinking from the cup of bitterness and hatred."
With the echoes of this remarkable speech still in my head, let me conclude this honoring of Dr. King by providing links to some prior MLK Day posts (from both of my main blogs). As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).
- Should criminal justice reform be the new civil rights movement?
- Honoring MLK by asking hard questions
- Reflecting on race and criminal justice realities to honor MLK's legacy
- Another reminder of race and criminal justice realities to honor MLK's legacy
- Is there less discussion of race and criminal justice since Obama's election?
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
Sunday, January 17, 2016
Notable Yale Law Journal Forum essays respond to big report on solitary confinement
As reported in this prior post from this past fall, the Association of State Correctional Administrators with researchers at Yale Law School together produced an important report about solitary confinement titled Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison. This report provided updated information, as of the fall of 2014, on the numbers and the conditions of prisoners in restrictive housing nationwide.
Now the folks at the Yale Law Journal have put together through its on-line Forum this impressive collection of essays that respond to Time-In-Cell. Here are the contents with links via the essay titles:
Only Once I Thought About Suicide by Reginald Dwayne Betts
Worse than Death by Alex Kozinski
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails by Marie Gottschalk
Time-In-Cell: Isolation and Incarceration by Judith Resnik, Sarah Baumgartel & Johanna Kalb
Time-In-Cell: A Practitioner's Perspective by Ashbel T. ("A.T.") Wall
Saturday, January 16, 2016
"The End of the Death Penalty Isn't Near"
The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida. Here are excerpts:
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....
In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.
The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.
And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.
Prior related postson Hurst:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure impact of Hurst
Friday, January 15, 2016
Supreme Court grants cert on high-profile political corruption case and to explore malicious prosecution suits
As reported in this extended post by Lyle Denniston at SCOTUSblog, the Supreme Court granted certiorari review on eight new cases this afternoon. None of the cases involve sentencing issues, but there are two cases with criminal justice elements. Here are excerpts of Lyle's account of these grants and their place within the Court's overall docket:
Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor. The Court also added seven other cases to its docket for decisions this Term.
The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar. That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited....
The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party. Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing. The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison. She currently has an appeal pending in a lower court.
His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws. The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial. McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices....
Manuel v. Joliet, Ill.: Does an individual who claims to have been a victim of police fabrication of evidence have a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.
Intriguing new poll on 2016 Californian perspectives on the death penalty
This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:
Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.
The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014. But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.
California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....
Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin. If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.
"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."
Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.
California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.
Thursday, January 14, 2016
"More Prison, Less Probation for Federal Offenders"
The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years. Here is the heart of the text of the document (with my emphasis added):
Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.
Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.
Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.
In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.
Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?
The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:
Race. Guns. The Death Penalty.
If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?
Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.
Florida Supreme Court wasting no time trying to figure impact of Hurst
This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences. The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:
The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.
After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....
Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.
Wednesday, January 13, 2016
"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"
The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:
Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges. Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics. Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.
This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence. This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.
In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates
In this post right after the Supreme Court's landmark marriage ruling in Obergefell v. Hodges, I asked in my post title "Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?". To date, I have not yet seen many stories suggesting post-Obergefell prison problems. But this local Alaska story, headlined "Bill would ban prison marriages, but not for the reason you think," suggests the Last Frontier could be one of the first states to change its prison marriage laws since the ruling. Here are the basics:
In his younger years, Anchorage Republican Rep. Bob Lynn served as a police officer in Tucson, Arizona. Last year, when the U.S. Supreme Court legalized same-sex marriage nationwide, that decision and Lynn’s firsthand experience merged in his mind.
On Friday, Lynn introduced House Bill 218, which would prohibit marriages at the state’s prisons. Lynn said the bill is a matter of fairness. If a same-sex couple falls in love within a prison’s walls, he doesn’t want them to have the ability to get married and share a cell with their spouse. “We’ve got a lot of prisoners who have a spouse outside the prison,” he said. “That’s not fair to them where somebody in the jail can have their spouse in there.”
Lynn said the bill would apply to same-sex and heterosexual couples alike; a person would not be able to get married to an inmate on prison grounds....
To accommodate a married same-sex couple who commit a crime together, Lynn’s bill includes a provision that would prohibit the Department of Corrections from putting the couple into the same facility. It also toughens the ban on conjugal visits — currently a regulation of the department — by putting it into law. That makes the ban tougher to overturn.
I suppose I can (sort of) see the logic of wanting to preclude two convicted spouses from being able to live together while serving their prison terms, but I have a hard time fully understanding why that concern would or should justify a blanket prohibition on allowing prisoners to marry the person of their choice if that other person also happens to be in custody. And because the Supreme Court has long suggested that only "legitimate security concerns" can justify "placing reasonable restrictions upon an inmate's right to marry," I could readily see a successful constitutional challenge to this blanket prisoner marriage ban if it were ever to become the law in Alaska.
Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge." Here is how the article starts:
The stars seem to have aligned. An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.
Even with that common ground, however, tensions are bubbling up. A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system. That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event. The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.
“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision. “It has to be overcome. This is a critical element to doing justice in this country.”
The disagreement points to the possibility that negotiations will break down. It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise. The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.
At stake is a question of fairness. Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity. Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.
That conflict could derail sentencing reform. Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.
As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country." Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.
Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform. Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries. Blah.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
January 13, 2016 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)
Tuesday, January 12, 2016
Unless Prez Obama goes off script, do not expect much SOTU talk about criminal justice reform
The White House has now released here the "Remarks of President Barack Obama – As Prepared for Delivery State of the Union Address." And, despite much early buzz that criminal justice reform was going to get some serious attention, it seems that the only part of the speech that even gets close to mentioning this topic comes at the very outset:
Tonight marks the eighth year I’ve come here to report on the State of the Union. And for this final one, I’m going to try to make it shorter. I know some of you are antsy to get back to Iowa.
I also understand that because it’s an election season, expectations for what we’ll achieve this year are low. Still, Mr. Speaker, I appreciate the constructive approach you and the other leaders took at the end of last year to pass a budget and make tax cuts permanent for working families. So I hope we can work together this year on bipartisan priorities like criminal justice reform, and helping people who are battling prescription drug abuse. We just might surprise the cynics again.
Given Prez Obama's so far uninspired record in this space, I suppose I should not be too surprised or disappointed that all the criminal justice buzz leading up to this speech was just more smoke and mirrors. And, if Prez Obama ends up walking the walk on what some have called "mass clemency," I will not be troubled that he did not talk the talk about criminal justice issues in this final SOTU. Still, I am now far less excited to hear him deliver the speech.
"Wanted man sends police department selfie to replace mug shot"
The title of this post is the headline of this local article sent my way by a helpful reader. And though one mght think the article comes from The Onion, it seems from these details that this vanity tale is not a tall one:
A wanted man in Ohio was not happy with his mug shot and decided to do something about it. Donald A "Chip" Pugh, 45, of Lima, Ohio has a warrant out for his arrest after failing to appear in court for a DUI, and is also a person of interest in several other cases including an arson and vandalism, according to the Lima Police Department Facebook page.
Despite the charges, Pugh felt the need to send a selfie of himself to the police department to replace the mug shot posted, saying: "Here is a better photo that one is terrible." The photo shows Pugh wearing a suit and sunglasses in a car with a sunroof.
In response, the department posted on it's Facebook page: "We thank him for being helpful, but now we would appreciate it if he would come speak to us at the LPD about his charges."
A few (too) quick thoughts on the post-Hurst hydra
As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona. Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring. I tried to tell them that was insane. They didn't listen. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.
Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.
As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal). Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.
Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now. Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst. Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.
Prior related post:
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
"Could One of These Cases Spell the End of the Death Penalty?"
The question in the title of this post is the headline of this new Marshall Project piece. Here is how it starts, with links from the original:
Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Monday, January 11, 2016
Plain and Prejudice and Zombie Guideline Errors
The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning. Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes. But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error). Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:
Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.
Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....
The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures. However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.
"Guilt, Innocence, and Due Process of Plea Bargaining"
The title of this post is the title of this recent paper authored by Donald Dripps that I just noticed on SSRN. Here is the abstract:
Threatened decades of imprisonment can exert more behavioral pressure than coercive police interrogation. Normative distinctions between confessions and guilty pleas offered in the Supreme Court's jurisprudence, and the academic literature, are unsound. Ergo catastrophic trial penalties should be subject to the narrowest version of the due process doctrine barring involuntary confessions: When the gap between the trial and guilty plea sentences might induce an innocent person to plead guilty, the plea is unreliable and a violation of due process. The appropriate remedy is for the defense to enter the plea subject to a trial offer, i.e., a request to the court to set the case for trial on lesser charges than those in the prosecution's trial threat; or subject to special procedures to reduce the risk of erroneous conviction at trial, such as barring proof of the defendant's prior convictions. The Supreme Court's plea bargaining cases are not inconsistent with such a procedure, while current practice is inconsistent with the Supreme Court's coerced confessions jurisprudence.
"A Most Violent Year: What left and right got wrong about crime in 2015"
The title of this post is the headline of this notable new commentary by Thomas Abt via The Marshall Project. Here are excerpts:
Was 2015 the year of the Ferguson Effect? Conservatives scream yes, progressives shout back no. Let’s step away from the din to examine whether all this yelling is getting us anywhere, and whether we’ve missed some useful explanations and effective policies that have been under our noses this whole time.
Last May, Heather Mac Donald of the conservative Manhattan Institute penned a controversial piece arguing that recent upticks in violence might signal a new national crime wave.... Mac Donald was wrong on several counts. First, she initially linked gun violence and homicide to crime overall, without offering evidence for doing so. Second, any criminologist will tell you that policing is only one factor of many in determining rates of violence. And third, the best and most thorough examination of “broken windows” policing recently revealed that when narrowly focused on solving problems in partnership with the community, broken windows is successful — when it isn’t, then not so much.
Progressives did not take these charges lying down. Many pushed back, asserting there was simply no evidence of a spike in violent crime. One widely cited report by the progressive Brennan Center for Justice admitted that homicide in 25 of the nation’s largest cities jumped 14.6% in 2015, but argued that the current rate is near historic lows, that rates vary widely and that any increases are localized and not part of a national trend. Moreover, they asserted that any increase was due to “root causes,” i.e. poverty, unemployment, and other structural factors, not policing.
The Brennan Center was also mistaken in a number of ways. First, while it is true that violence remains historically low (and that crime overall continues to fall), a 14.6% national spike in murder would be the largest single-year increase since at least 1960. Furthermore, while local rates of violence often fluctuate, national rates are more stable, and the Brennan Center’s own data shows that murder is up in 18 of 25 of the nation’s largest cities. As for “root causes,” there is little evidence of a direct connection between violence and structural factors like poverty and unemployment. And none of those factors changed significantly last year, so they can hardly explain the surge of violence.
To summarize, the increase in homicides appears real, but there is no broader national crime wave. It is unclear what is driving the problem, but my own hunch — and it is still just a hunch at this point — involves a criminological phenomenon called legal cynicism. Multiple studies have demonstrated that, controlling for other factors, when communities view the police and criminal justice system as illegitimate, they become more violent. When people believe the system is unwilling or unable to help them, they are more likely to take the law into their own hands, creating the cycles of violent retribution...
Cynicism about the law might also explain why the biggest homicide spikes in 2015 occurred in places like St. Louis, Baltimore, and Milwaukee, where there was unrest after controversial uses of police force, and why Boston, with its recent history of positive police and community collaboration, had the largest single decrease in homicide of any large city. In order to address cynicism in the streets, we have to address cynicism in our public conversation about guns, crime, and punishment. Violence can fracture a community, but so can violent, partisan, absolutist rhetoric on television, in print, and on social media.
Prior related post:
- Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect"
Lots of notable Atlantic reads on range of criminal justice topics
The folks over at The Atlantic always have a lot of worthy criminal justice (and other) reads, and these recent pieces struck me as especially blogworthy:
"The Steep Costs of Keeping Juveniles in Adult Prisons:Despite federal statues prohibiting it, many states imprison those under 18 alongside adults, where they are much more likely to suffer sexual abuse and violence."
Sunday, January 10, 2016
Noting criminal justice fallout when state judges and prosecutors behave badly
I have only paid a little attention to the wide-ranging scandal involving judges and prosecutors in Pennsylvania known as "Porngate," but this local article notes how this scnadal is having some criminal justice ramifications. The piece is headlined "Fallout from Porngate leads to cases being appealed, claiming racial, gender, and ethnic bias," and here are excerpts:
Since late last year, lawyers across the state have quietly seized upon the pornographic, sexist, and racially offensive emails exchanged by a small circle of judges, prosecutors, and law enforcement officials to ask courts to reevaluate decisions ranging from criminal convictions to civil judgments and even death sentences.
They argue that the insensitive correspondence -- many of which contain jokes about rape; photos mocking African Americans, Hispanics, and other minorities; and insulting comments about gays, the obese, and the disabled - expose hidden biases and an inappropriate chumminess between the judges and prosecutors who already wield great power over the state's system of justice.
"It is important that any case be judged by someone who is fair, impartial, and sensitive to the issues of abuse, racial discrimination, and to prolonged exposure to trauma," said Robert Dunham, of the Washington-based Death Penalty Information Center. "Given the insensitivity reflected in those emails, it's not surprising that lawyers would be raising challenges."...
Reviews by the Supreme Court, the Attorney General's Office, and the state Judicial Conduct Board have found no emails in which individual cases were discussed. Still, defense lawyers have challenged cases across the state:
In Philadelphia, lawyers for Griffin Campbell, the demolition contractor sentenced Friday to 15 to 30 years in prison for his role in the deadly 2013 Center City building collapse, have pointed to crude racial jokes contained in many of the emails of the prosecutor who oversaw the grand jury investigation. They argued the messages raise questions over whether his was a "racially selective prosecution."
In Harrisburg, three African American women from Philadelphia have asked the Supreme Court to reconsider a 1997 decision upholding their convictions on contempt of court, saying Eakin's emails now "raise substantial questions about the propriety of his participation in cases such as this one."
And in Cumberland County, death-row inmate Antyane Robinson is seeking a Supreme Court rehearing, saying the email traffic between Eakin, who wrote an opinion denying his earlier appeal, and the trial prosecutor in his case suggests an inappropriately friendly relationship and a potential bias toward the government case that earned Robinson a death sentence for the 1997 murder of a romantic rival. The emails, Robinson's Luzerne County lawyer Enid Harris wrote in a filing last month, "indicate an utter lack of judicial sensibility and impartiality necessary for Eakin to have provided a fair review."
Whether any of those arguments will succeed remains to be seen. Prosecutors in all three cases have dismissed the idea that any prejudice the emails may expose should warrant tossing out judgments settled years ago. The larger concern, legal experts say, is not that prosecutors or judges allowed their legal reasoning to be overtly guided by the sophomoric attitudes on display in their email in-boxes.
Rather, the more insidious threat, said Nicholas Cafardi, a Duquesne University law professor, is the doubt their correspondence may have planted in the minds of ordinary citizens with business before the court. Thirteen years ago, Cafardi led a panel of experts appointed by the state Supreme Court in an assessment of racial and gender bias in the state's court system and produced a stunning report cataloging dozens of examples of prejudice - both subtle and overt.
More than a decade since that exhaustive review, Porngate's revelations have sat uncomfortably with Cafardi. "The only credibility our judicial system has is its impartiality," he said. "Judges who make sexist or racist remarks or even enjoy being told racist or sexist jokes convey the impression that they're not impartial. It's not enough to say that they didn't mean ill. The damage to the system has already been done."
Expecting (too?) much crime and punishment talk at Prez Obama's last State of the Union
Long-time readers know that I am always hopeful that the annual State of the Union events will address criminal justice issues, and also that Prez Obama has been consistently disappointing in this respect with his prior SOTUs. But this year, for lots of reasons, I am expecting crime and punishment to play a big role in the final SOTU to be delivered by Prez Obama. One reason is because of a notable guest who will be there as reported in this BuzzFeed News piece headlined "Meet The Ex-Convict President Obama Will Host At The State Of The Union." Here is how the article gets started (with links from original):
On Tuesday, President Obama may include a renewed promise to change the way the criminal justice system deals with suspects, offenders, and convicts in his final State of the Union address. In the audience will be woman who has seen all sides of the justice system — and all after her 57th birthday. Sue Ellen Allen, who spent nearly seven years as an Arizona inmate in the state’s women’s prison near Goodyear will be among the president’s guests at the speech. Allen was raised middle class, lived wealthy, and lost it all on her way to being convicted in absentia of securities fraud while an international fugitive on the run with her husband who also served time for the crime.After she got out of prison, in 2009, Allen did everything she could to get back in and offer resources to women still behind bars that she believes will help them escape the recidivism cycle that traps many inmates in the justice system for years. Now she regularly returns to the prison that held her to run education and jobs programs for the women there. She says the experience of seeing another side of America was “a blessing” and that her new calling is part of making good on the lessons she learned behind bars. “I was well educated, I was privileged because I have white skin — I’m a white woman and that’s a privilege,” Allen told BuzzFeed News. “If you had told me what I was going to see and experience in prison, I would have said, ‘Not in my country. We don’t treat people that way.’ I was wrong.”
When Obama delivers the State of the Union speech, Allen will be there, seated in the House chamber in the Capitol. Presidents regularly use their guest list to highlight issues and policy goals, and Obama’s seventh address will be no different. (Obama is breaking the mold a little next week — one of his “guests” will be a seat intentionally left empty to highlight the Americans lost during his presidency to gun violence.)
But White House aides say the focus of the speech is different than other State of the Union speeches. Instead of the standard list of policy ideas and applause lines, senior administration officials say this State of the Union will be about the broad changes Obama promised in his first campaign and how they play into his presidential legacy.
Criminal justice is set to be a huge part of that legacy, and get a prominent place in the speech. The Obama administration has linked up with conservatives and liberals to push changes to the justice system aimed at reducing the number of people put in prison, the length of time nonviolent offenders spend there, and reducing the costs associated with a system that houses more inmates than any other country on earth. The Obama administration has attempted to address longstanding goals of criminal justice advocates at the highest levels — the administration has supported dramatic changes in the war on drugs and called for an end to many mandatory minimum prison sentences — and the lowest. Obama has taken interest in prison life, becoming the first president to visit a federal prison last July. He’s called for new anti-recidivism programs and more efforts to offer education and other assistance to people behind bars. Changing the way prisons work, the president has said, can reduce the number of people who go in, out and back into the system.
In addition to expecting Prez Obama to talk about criminal reform during his SOTU speech, perhaps we could hear mention of crime and punishment in the GOP response. At the very least, folks at FreedomWorks are suggested it should via this recent commentary headlined "Republicans Should Promote Justice Reform in State of the Union Response."
Saturday, January 9, 2016
"Keeping It REAL: Why Congress Must Act to Restore Pell Grant Funding for Prisoners"
The title of this post is the title of this new paper by SpearIt now available via SSRN. Here is the abstract:
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.
Friday, January 8, 2016
SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!
The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:
Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States. A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.
Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release. The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.
The new case is Welch v. United States; it will be argued in March.
US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments
As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.
I say this because,
(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....
(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts. Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.
Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action. But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less). Kudos to the USSC!
UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:
At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.
In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.
Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?
Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.
This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today. Here is the basic backstory of this particular case:
When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause. After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.
While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges. The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit. However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.
I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.
A few prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- "The Circuit Split on Johnson Retroactivity"
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
- Updating the bubbling lower-court vagueness mess six months after Johnson
"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:
In this article, we have reviewed the legal issues surrounding restitution for child pornography victims. In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses. Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.
After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."
January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)
Is mass incarceration contributing to the dumbing down of America?
The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education." As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:
According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending. Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.
According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States. Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.
That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....
The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....
Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.
In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”
Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”
The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link. The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).
Thursday, January 7, 2016
US Sentencing Commission slated to vote on "Johnson fix" guideline amendment and promulgate other proposals
As detailed in this official notice, the United States Sentencing Commission has "a public meeting of the Commission ... scheduled for Friday, January 8, 2016, at 1:00 p.m.... This meeting will be streamed live." Here is the agenda (with my emphasis added):
- Vote to Adopt August 2015 Meeting Minutes
- Report from the Chair
- Report from the Staff Director
- Possible Vote to Promulgate Proposed Crime of Violence Amendment
- Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment
These last two agenda items could be a very big deal, depending on what the USSC has in the works.
Deep dive into notable state-level clemency developments
This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:
Barry Beach in Montana got one. Gabrielle Cecil in Louisville got one. And actor Robert Downey Jr. in California got one. They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.
Beach’s 100-year sentence for murder was shortened to time served, 30 years. Cecil’s life sentence for killing her abusive partner was forgiven. And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior. They’re the lucky ones.
Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.
But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars. “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”...
Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance. Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is. “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.
Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president. “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....
In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:
- New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
- Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
- Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.
Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”
"The Fog Around Cost-Benefit Studies of Crime and Punishment May Finally Be Clearing: Prisoners and Their Kids Suffer Too"
The title of this post is the title of this new essay authored by Michael Tonry and available via SSRN. Here is the abstract:
Cost-benefit and cost-effectiveness studies of crime control and punishment have proliferated since the late-1980s. Especially in relation to crime prevention programs and punishment policies they have been hugely, and regrettably, influential. “Regrettable” because many have relied on exaggerated estimates of “intangible costs” of victimization so unrealistically high that that almost any sanctioning policy no matter how severe could be shown to be effective.
Likewise, almost any prevention program estimated to have prevented rapes or robberies could be shown to generate benefits in excess of costs. Estimates for rape and homicide were greatly exaggerated because they were initially based on jury damage awards in civil law suits, the right hand tale of any crime distribution because a successful lawsuit depends on the presence of an egregious crime and one or both of a highly sympathetic victim and a wealthy or well-insured defendant. The latter are not common characteristics of rape and homicide defendants.
More recent studies have relied on statistical life valuations ranging from $0.7 to 26.4 million, a range so wide that any number chosen is inherently arbitrary. Recent work, however, has shown that studies relying on estimates of intangible victim costs are fundamentally flawed for the reasons described and others.
Are there any clear data patterns linking marijuana reforms and broader criminal justice developments?
The somewhat cumbersome question in the title of this post is prompted by the number crunching appearing in this interesting data-focused new piece by Jon Gettman via High Times titled ""Pot Matters: Marijuana in the Larger Context of Criminal Justice Reform." Here are excerpts:
The Bureau of Justice Statistics has recently release their annual data on correctional populations in the United States, comparing the latest data (from 2014) with prior years. This data on people under correctional supervision consists of totals of people incarcerated in either jail or prison, those on probation, or released on parole. This data does not include information on the offenses committed by people under correctional supervision. The big headline is that the total population of people under the watchful eye of the correctional supervision is declining.
In 2014, there were 6,851,000 people in the system, a decline of 52,200 offenders from 2013. The overall rate of 2.8 percent of adults in the United States being under some form of correctional supervision is the lowest since 1996. The correction population has been declining by an annual average of one percent since 2007. The incarcerated population increased slightly (by 1,900) in 2014, and most of the decrease over time has been in the area of community supervision (probation and parole). Reducing the number of marijuana arrests in a jurisdiction is an easy way to reduce the burden on probation officers given that many marijuana possession offenses result in probation....
From 2005 to 2014, the total correctional population in the United States fell by 241,000 from 7,055,600 to 6,814,600. Actually, the federal population increased by 33,500 in this period, but the state population fell by 274,500. However, the correction population increased in 26 states by a total of 283,100. It fell in 24 states and the District of Columbia by 557,300.
So which states are increasing their correctional populations? The biggest increases from 2005 to 2014 were in Georgia (48,000), Pennsylvania (47,500), Kentucky (30,700), Colorado (25,500) and Tennessee (20,600). The other states rounding out the top 10 were Alabama, Mississippi, Virginia, Arizona and Iowa.
The biggest decreases in correctional populations were in California (-160,700), Massachusetts (-101,800), Florida (-49,300), New York (-38,400) and Texas (-34,500). The rest of the top 10 in reduced correctional populations were New Jersey, Illinois, Minnesota, Connecticut and North Carolina.
There is no clear pattern here with respect of state marijuana laws, but there is an interesting trend worth noting. States that rely more on community supervision than incarceration often have reformed their marijuana laws....
Of the 15 jurisdictions with the highest levels of community supervision, in addition to Georgia, seven of them have decriminalized or legalized marijuana (Washington D.C., Minnesota, Ohio, Massachusetts, Washington, Oregon and Maryland). Increasing the list to 16 adds Colorado. Other states in this group of 16 have medical marijuana laws (Rhode Island, Hawaii, New Jersey, Vermont and Michigan).
Marijuana law reform and legalization are sound policies with great merit, but they are also part of a larger issue in the United States, the reform of the criminal justice system in ways that reduce the number of people under correctional supervision. This has always been part of the argument for legalizing cannabis — the justice system should stop wasting resources on marijuana users and divert them to violent offenders.
The recent trends in correctional supervision data present good news and bad news when it comes to the legalization of cannabis. The good news is that many states are receptive to criminal justice reform, particularly ones that have already made a commitment to community supervision as an alternative to incarceration. These states, and states that are reducing their correctional populations, may be the most receptive to ending arrests for marijuana offenses.
The bad news is that other states remain committed to increasing arrests and increasing correctional populations. These states, their criminal justice professionals and their political leaders will present the greatest challenges to the legalization of cannabis throughout the United States.
I would be very eager for readers to point me to any other research or data sets starting to look at whether and how a state's approach to marijuana reform may (or may not) be incfluencing other criminal justice developments in the state. And, of course, anyone just generally interested in marijuana reform ought to be regularly checking out my Marijuana Law, Policy & Reform blog. Here are links to a few recent posts from that locale:
- Should we expect any major federal marijuana reform developments in 2016?
- Two different prespectives on the coming marijuana reform future
- Gearing up for historic 2016 in the arena of marijuana law, policy and reform
- MPP Director provides Top 10 accounting of marijuana reform achievements in 2015
- SAM Prez provides Top 10 accounting of marijuana reform difficulties in 2015
Wednesday, January 6, 2016
Two new Slate commentaries assailing the modern death penalty and modern prisons
The on-line magazine Slate has these two notable new commentaries on two topics that are often the focal point of this blog:
Making the case for a "20-Year Maximum for Prison Sentences"
The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane. To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer. The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns. Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around. Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age. As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives. Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population. Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.
This impact comes at great cost as well. Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.
Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration. Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.
Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection. That’s certainly correct. But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.
For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term. A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety. And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.
While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary. Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term. Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.
Tuesday, January 5, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
"Reducing Crime Through Expungements"
The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:
Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him. This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record. Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.
Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies. Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record. On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time. Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.
John Gleeson, a member of my Sentencing Judges Hall of Fame, joins notable "teammates" in stepping down from federal bench
In a (personal favorite) post of mine here more than a decade ago, I mused about creating a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. In that post, I noted that the first inductee of my Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms. I thereafter went on to praise the more recent sentencing work of US District Judges Nancy Gertner and Paul Cassell, suggesting their post-Blakely sentencing opinions earn them a spot in the SJ Hall of Fame.
I bring up that long ago post in part because Nancy Gertner and Paul Cassell, in addition to having both done extraordinary sentencing work as federal district judges, both made the (fairly unusual) decision in recent years to step down from the federal bench and return to private practice. And now, as reported in this New York Daily News article, US District Judge John Gleeson — another extraordinary judge who has done extraordinary sentencing work in recent years — has told his judicial colleagues that he is soon to be stepping down from bench. Here are the basics:
Brooklyn Federal Judge John Gleeson, the former prosecutor who nailed the late Gambino boss John Gotti on racketeering and murder charges — shattering his “Teflon Don” reputation — is stepping down from the bench to practice law, the Daily News has learned. Gleeson, 62, made the announcement to his fellow judges on Monday, sources said. He said the decision was made in the best interests of his family — Gleeson is married and has two college-age daughters.
Gleeson was next in line to become the chief judge for the Eastern District of New York when Judge Carol Amon’s term as chief expires. With Gleeson out of the picture, Judge Dora Irizarry is expected to be the next chief judge, sources said.
“He’s worked in government service practically his entire life,” a source told The News. “If he wants to earn money while he’s still young, there’s nothing wrong with that.” Federal judges make about $200,000 a year, and Gleeson is expected to make in the seven figures in private practice.
It is rare, but not unheard of, for a federal judge with lifetime tenure to return to private practice. John Martin gave up his judicial robe in the Southern District of New York in 2003 to join a law firm....
President Clinton rewarded Gleeson [for his work as a federal prosecutor] in 1994 by appointing him to the bench....
In recent years, Gleeson was somewhat of a maverick on the bench, advocating against draconian sentences that took away a judge’s discretion. Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago.
Here are links to a few prior posts reporting on just a few of Judge Gleeson's prior opinions that earned him a plac in the SJ Hall of Fame:
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
- US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas
- US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Monday, January 4, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)