Wednesday, March 28, 2018

Latest update on battles over criminal justice reform inside the Trump Administration

The New York Times has this lengthy new article under the headline "Sessions and Kushner Square Off, and Prisoners Hang in the Balance." It covers ground that will largely be familiar to regular readers, and here are a few excerpts:

In the final months of the Obama administration, the Justice Department announced a new approach to preparing prisoners for life beyond their cells. Officials created a prison school system, pledged money for technology training and promised to help prevent former inmates from returning to prison.

Almost immediately after taking office, Trump administration officials began undoing their work. Budgets were slashed, the school system was scrapped and studies were shelved as Attorney General Jeff Sessions brought to bear his tough-on-crime philosophy and deep skepticism of Obama-era crime-fighting policies.

Now, nearly a year and a half later, the White House has declared that reducing recidivism and improving prisoner education is a top priority — echoing some of the very policies it helped dismantle.

This whiplash approach to federal prison policy reflects the tension between Jared Kushner, the president’s reform-minded son-in-law and senior adviser, and Mr. Sessions, a hard-liner whose views on criminal justice were forged at the height of the drug war. It has left both Democratic and Republican lawmakers confused and has contributed to skepticism that the Trump administration is serious about its own proposals....

Mr. Kushner, administration officials say, supports such sweeping change. Mr. Sessions is adamantly opposed. The two men reached a compromise in recent months: Mr. Kushner could push for the prison changes, but Mr. Sessions would position the administration strongly against a broader overhaul.

“I do believe that Jared Kushner is earnest in his desire for criminal justice reform,” said Inimai M. Chettiar, of the liberal-leaning Brennan Center for Justice. “But Jeff Sessions is still stuck in 1980. He hasn’t moved along with everyone else, including top prosecutors and police chiefs, who realize that tough-on-crime doesn’t work.” Ms. Chettiar said she was not convinced that Mr. Kushner’s support was enough to get the administration behind real change — even in the narrow area of prisons.

The Justice Department said Mr. Sessions fully supported the White House principles and was committed to helping inmates develop the skills needed to return to society. But Mr. Sessions is not rushing to promote those efforts: Over two weeks, the Justice Department refused to make anyone available to discuss them and would not identify which prison education programs have been cut and which remain.  “They’re not going to talk to you about this,” said Joe Rojas, a teacher at the federal prison complex in Coleman, Fla.  He said the Justice Department could not answer those questions without acknowledging that the Trump administration had cut more than 6,000 prison jobs. Staffing is so short that teachers around the country are regularly reassigned to cover routine guard duties, he said.

One of the White House priorities is to offer incentives to encourage inmates to enroll in programs to prepare them for life outside prison.  Mr. Rojas and others are quick to note that incentives are not the problem: Educational programs are so popular that more than 15,000 federal inmates are on waiting lists for high school equivalency diploma and literacy programs, according to a 2016 Justice Department report. “It sounds pretty on paper,” said Mr. Rojas, who is the president of his American Federation of Government Employees union local. “But when you cut staff, you can’t do anything.”

Mr. Grassley said that he while appreciated Mr. Kushner’s desire to get something done, he did not support any effort to try to address prisons without fixing what he saw as fundamental unfairness in sentencing laws. And he believes Mr. Kushner shares his views.  “But he sees a chance of getting half a loaf, and he’s willing to settle for a half a loaf,” Mr. Grassley said. “I’m not going to.”

The White House argues that Mr. Grassley’s argument is moot because the Senate majority leader, Mitch McConnell of Kentucky, will not allow a vote on a broad criminal justice bill that divides Republicans. Mr. Grassley sees that as an excuse.  “If the president would start tweeting about it every other day like he tweets about everything else, McConnell would come along,” he said.

Mr. Kushner believes that the White House can forge consensus around prison reform. He wants the federal government to look to states for proven ideas to reduce recidivism. The White House recently hired Brooke Rollins, a conservative lawyer who advocated such changes in Texas, a state that is often held up by both conservatives and liberals as a leader in reducing recidivism.

Amy Lopez, a former teacher in the Texas prison system, agreed that the federal government could learn from states. More data exists than ever before, she said, and it shows that education reduces the chance that a former inmate will be arrested again.

The Justice Department hired Ms. Lopez in 2016 to replace the patchwork prison education system with a centralized school district that offered diplomas, technology training and vocational education. “It was interesting to have this focus at the federal level on education,” she said. “That was new.”

Within months, she was fired, the school system axed. She took a job overseeing education in Washington’s city corrections system. Trump administration officials say that, as part of the new focus on prisons, if the school idea turns out to have been a good one, they can always reconsider it.

March 28, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Tuesday, March 27, 2018

Texas completed fourth execution on 2018

As reported here, a "man dubbed Lubbock’s 'suitcase killer' was executed Tuesday evening, one day after his 38th birthday." Here is more:

Rosendo Rodriguez was sentenced to death in the 2005 murder and sexual assault of Summer Baldwin, a newly pregnant prostitute, according to court records. Baldwin’s body was found folded inside a suitcase at the city’s landfill. Rodriguez was also implicated in the 2004 murder of 16-year-old Joanna Rogers, whose body was also found in a suitcase in the landfill after Baldwin was discovered.

Just minutes before his execution was scheduled at 6 p.m., the U.S. Supreme Court denied his final appeal, and the process to put Rodriguez to death began on time. He was placed on a gurney, connected to an IV, and uttered his last words while his family and the parents of Baldwin and Rogers watched on through a glass pane. In his final statement, Rodriguez called for an investigation into the Lubbock County district attorney and medical examiner, saying they were involved in thousands of wrongful convictions. He also called for a boycott of Texas businesses until the death penalty is stopped....

He died at 6:46 p.m., 22 minutes after a lethal dose of pentobarbital was injected into his veins. He was the fourth person executed in Texas this year and the seventh in the nation.

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

After botched effort last month, Alabama agrees not to try again to execute Doyle Lee Hamm

As reported in this NBC News piece, an "Alabama death-row inmate who survived a botched lethal injection will not face another date with death under a settlement his attorney struck with the state." Here is more:

Doyle Lee Hamm filed a civil rights action last month after the prison medical team repeatedly punctured him in an effort to place an IV before calling off the execution just before his death warrant expired.

His attorney, Columbia law professor Bernard Harcourt, said the procedure amounted to "torture" and was so painful that the 69-year-old Hamm hoped for a quick death. "During this time Mr. Hamm began to hope that the doctor would succeed in obtaining IV access so that Mr. Hamm could 'get it over with' because he preferred to die rather than to continue to experience the ongoing severe pain," Dr. Mark Heath, who was retained by Harcourt to examine Hamm, wrote in a report after examining the inmate.

Hamm was sentenced to death for the 1987 murder of hotel clerk Patrick Cunningham.

His legal team warned the state that his veins were in such bad shape from drug use and cancer treatment that it would be very challenging, if not impossible to place the needle that would deliver the lethal drugs.

After that prediction proved true, Harcourt and the state began confidential negotiations. The result is that the state won't set another execution date and Hamm will drop his legal challenges.

Prior related post:

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

"The Scale of Misdemeanor Justice"

the title of this post is the title of this notable new paper authored by Megan Stevenson and Sandra Mayson now available via SSRN. Here is its abstract:

This Article seeks to inform misdemeanor scholarship and policy by creating the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States.  First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year.  Second, contrary to conventional wisdom, this number is not rising.  Both the number of misdemeanor arrests and cases filed have declined markedly in recent years.  In fact, arrest rates for almost every misdemeanor offense category have been declining for at least two decades in almost every state for which data is available.  Third, there is profound racial disparity in the misdemeanor arrest rate for most — but not all — offense types. This is sobering if not surprising.  More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today.

Our national caseload estimate confirms current perceptions about the scale of misdemeanor justice, but the declining arrest and case-filing rates present a challenge for misdemeanor scholarship.  Contemporary research on misdemeanors has been influenced by the impression that the system is expanding.  As a result, the theoretical contributions made by recent scholars provide no immediate explanation for the decline in misdemeanor arrests and case-filing rates.  In addition, we document what to us was a surprising degree of uniformity in misdemeanor trends.  Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated, and may be subject to common influences across jurisdictions.  As misdemeanor scholarship develops, we believe that an important challenge is to expand our theories of misdemeanor justice to make sense of the statistical patterns presented here.

March 27, 2018 in Data on sentencing, Offense Characteristics | Permalink | Comments (0)

SCOTUS day for considering rules for prison sentence modification based on changed guidelines

The US Supreme Court this morning hears oral argument in two cases involving application of 18 U.S.C. §3582(c)(2), which allows a federal judge to modify a federal prison term for a "defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."  Here are links to the SCOTUSblog case pages and previews for both cases (the second preview I authored):

Hughes v. United States

Koons v. United States

Hundreds, perhaps thousands, of current federal prisoners might have their sentences directly impacted by these cases. Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines suggests that over 750 defendants may have been denied a reduced sentence based on the issue to be considered in Hughes and that nearly 3000 defendants may have been denied a reduced sentence based on the issue to be considered in Koons.  And, as always with criminal justice cases these days, I am especially interested to see if and how the new guy, Justice Gorsuch, approaches and frame the issue under consideration. 

March 27, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, March 26, 2018

"The War on Drugs Breeds Crafty Traffickers"

The title of this post is the title of this notable new op-ed in the New York Times authored by Sanhoe Tree. I recommend the piece is full, and here are excerpts:

Politicians often escalate drug war rhetoric to show voters that they are doing something. But it is rare to ignore generations of lessons as President Trump did earlier this month when he announced his support for the execution of drug traffickers. This idea is insane. But the war on drugs has never made any sense to begin with.

Executing a few individual smugglers will do little to stop others because there is no high command of the international drug trade to target, no generals who can order a coordinated surrender of farmers, traffickers, money launderers, dealers or users.  The drug trade is diffuse and can span thousands of miles from producer to consumer. People enter the drug economy for all sorts of reasons — poverty, greed, addiction — and because they believe they will get away with it.  Most people do.  The death penalty only hurts the small portion of people who are caught (often themselves minorities and low-level mules).

Indeed, on the ground, the threat of execution will even help those who aren’t caught because they can charge an increased risk premium to the next person in the smuggling chain. The risk of capture and punishment increases as drugs move from farm to processing lab, traversing jungles, through cities, across oceans, past borders, distributed by dealers and purchased by consumers.  The greater the risk to smugglers in this chain, the more they can demand in payment....

An overreliance on intensive policing over the decades has also produced a rapid Darwinian evolution of the drug trade.  The people we have typically captured tend to be the ones who are dumb enough to get caught.  They may have violated operational security, bragged too much, lived conspicuous lifestyles or engaged in turf wars.  The ones we usually miss tend to be the most innovative, adaptable and cunning. We have picked off their clumsy competition for them and opened up that lucrative economic trafficking space to the most efficient organizations.  It is as though we have had a decades-long policy of selectively breeding supertraffickers and ensuring the “survival of the fittest.”

To support his case for executions, Mr. Trump cites draconian penalties in other countries. Iran has used the death penalty extensively in drug cases, but more than 2.8 million Iranians still consume illicit drugs.  Earlier this year, the Iranian government even repealed the use of executions in most drug cases which could spare up to 5,000 people on death row.

Mr. Trump often praises President Rodrigo Duterte’s brutal drug war in the Philippines, which has claimed 12,000 to 20,000 lives in mostly extrajudicial killings.  But there is little indication that drug use has actually decreased.  In fact, as the killings have increased, so too have the government’s drug use estimates.  What began as 1.8 million users at the beginning of 2016 grew to three million and later four million.  Last September, the Philippine Foreign Secretary, Alan Peter Cayetano, even raised that estimate to seven million. The higher numbers are likely inflated, but more killings do not appear to reduce the number of users.

Singapore notoriously refuses to publish reliable drug-use statistics, so there is no way to show whether executions have any measurable effect on drug consumption.  As Harm Reduction International pointed out, however, Singapore’s seizures for cannabis and methamphetamine increased 20 percent in 2016 while heroin seizures remained stable. Moreover, 80 percent of Singapore’s prisoners are incarcerated for drug-related offenses.  All of this suggests, Singapore’s famous panacea to solve the drug problem is not as miraculous as it seems....

Mr. Trump is not advancing a new strategy to deal with opioids.  It was President Clinton who put these death penalty statutes on the books as part of the 1994 crime bill, but they remain unused.  Mr. Trump and Attorney General Jeff Sessions are trying to change that.  They want to use those laws in racketeering cases and ones involving large quantities of drugs even though the Supreme Court has ruled that capital punishment should be reserved only for crimes resulting in death.

The Donald Trump of 2018 should take a lesson from the Donald Trump of 1990 when he told the Miami Herald: “We are losing badly the war on drugs. You have to legalize drugs to win that war.”

March 26, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Ohio Gov. Kasich commutes yet another death sentence

As reported in this FoxNews piece, the Governor of Ohio commuted yet another death sentence today.  Here are some details explaining why (with an emphasis on a final fact in the article):

Ohio Gov. John Kasich Monday spared a condemned killer who was set to die April 11 for fatally shooting a woman more than three decades ago during a robbery after questions were raised about discrepancies in the case and the fairness of the trial.

The Republican governor's release said his decision followed the report and recommendation of the Ohio Parole Board, which voted 6-4 on March 16 in favor of clemency for death row inmate William Montgomery. Kasich had no additional comment, his spokesman Jon Keeling said.

Montgomery was sentenced to die for the 1986 shooting of Debra Ogle during a robbery in the Toledo area. In its ruling, the parole board concluded that commuting Montgomery's sentence to life without the possibility of parole was warranted, which is what Kasich did....

The board majority noted that two jurors said after the trial they had difficulty understanding the law, and one juror was permitted to remain on the jury despite exhibiting "troubling behavior and verbalizations" that raised questions over fitness. The majority also cited concerns that a police report in which witnesses said they saw Ogle alive four days after Montgomery is alleged to have killed her was never presented to the defense.

A federal judge and a panel of the 6th U.S. Circuit Court of Appeals ruled Montgomery deserved a new trial based in part on the missing report. But the full 6th Circuit rejected that argument. The witnesses later said they mistook Ogle's sister for the missing woman.

"The failure to disclose that report coupled with the issues described above relative to Montgomery's jurors raise a substantial question as to whether Montgomery's death sentence was imposed through the kind of just and credible process that a punishment of this magnitude requires," the parole board said on March 16....

Since taking office, Kasich has allowed 13 executions to proceed and has now spared six inmates.

The 21-page Ohio Parole Board recommendation for clemency is available at this link.

This capital commutation, as noted in the article, is the sixth granted by Gov Kasich.  That now exceeds the number of capital commutations by his predecessor, Ted Strickland, though Gov Strickland's did five capital clemency grants in a single term while Gov Kasich has needed two terms to get best Strickland's number.  And I believe Ohio Gov Richard Celeste still hold the state's modern record as he commuted eight death sentences as he was leaving office in 1991.

March 26, 2018 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

"Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration"

The title of this post is the title of this new paper authored by Laura Appleman now available via SSRN. Here is the abstract:

Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state.  These three narratives, however, only partially explain where we are.  Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled.  This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system.  Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

March 26, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)

1360879220_amy-locane-bovenizer-lgThis local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:

Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."

"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.

In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.

It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."

Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.

Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.

In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."

But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.

Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."

"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.

Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.

Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class).  And the opinion's final paragraph highlights still other matters the opinion engages:

In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.

Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.

March 26, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, March 25, 2018

"Prison Crime and the Economics of Incarceration"

The title of this post is the title of this notable new paper authored by Ben Gifford now available via SSRN. Here is its abstract:

As America’s prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged to measure the benefits and costs of incarceration.  The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society.  The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms.  Once these benefits and costs are quantified, empirical scholars are able to assess whether it “pays,” from an economic perspective, to incarcerate more or fewer criminals than we currently do.

Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration.  In each of these areas, policymakers rely heavily on empirical scholars’ work, whether by adopting their general methods or incorporating their specific results.

While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: they fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented “in society.”  Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff.  This exclusion is significant, as prison crime is rampant, both in relative and absolute terms.

To address this oversight, this Article makes several contributions: First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework.  Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus.  Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses.  As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.

March 25, 2018 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, March 23, 2018

New spending bill includes a lot more money for Justice Department to fight drug war even harder

A helpful reader made sure that I did not miss the important criminal justice story within this week's budget drama.  Specifically, the new spending bill signed today, as detailed here, includes lots more money for the Department of Justice to hire a lot more agents and prosecutors to, presumably, bring a lot more federal drug cases:

TITLE II

DEPARTMENT OF JUSTICE

GENERAL ADMINISTRATION

SALARIES AND EXPENSES

This Act includes $114,000,000 for General Administration, Salaries and Expenses.

Opioid and heroin epidemic. -- The Act includes significant increases in law enforcement and grant resources for the Department of Justice (DOJ) to combat the rising threat to public health and safety from opioid, heroin and other drug trafficking and abuse. This includes a total of$446,500,000, an increase of $299,500,000 more than fiscal year 2017, in DOJ grant funding to help State and local communities respond to the opioid crisis.

Federal Law Enforcement and Prosecutors. -- The Act includes significant increases for DOJ Federal law enforcement and prosecution agencies which will help DOJ investigate and prosecute high priority cases, including those involving opioids, heroin, and other drug trafficking amongst other law enforcement priorities that were agreed upon by the Committees in this explanatory statement. The overall increase is $717,691,000 more than fiscal year 201 7 which includes: $101,750,000 for U.S. Attorneys; $62,452,000 for U.S. Marshals Service operations; $36,912,000 for the Drug Enforcement Administration (DEA) diversion control program and $87,350,000 for DEA operations; $25,850,000 for the Organized Crime and Drug Enforcement Task Forces; $263,001,000 for Federal Bureau oflnvestigation (FBI) operations; $35,176,000 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and $105,200,000 for the Bureau of Prisons (BOP) operations.

My sense is that these "significant increases" in resources for federal agents and prosecutors could and likely will impact the federal prison population a lot more than any number of higher-profile developments like a memo encouraging pursuit of the death penalty or changes in marijuana policies. one can never repeat the mantra too much: "Follow the money."

March 23, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)

Brennen Center releases new report: "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators"

The Brennan Center today released this notable new report titled, "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators." Here is its executive summary reprinted here:

This report sets forth an affirmative agenda to end mass incarceration in America.  The task requires efforts from both federal and state lawmakers.

Today, criminal justice reform stands on a knife’s edge.  After decades of rising incarceration and ever more obvious consequences, a powerful bipartisan movement has emerged. It recognizes that harsh prison policies are not needed to keep our country safe.

Now that extraordinary bipartisan consensus is challenged by the Trump administration, through inflammatory rhetoric and unwise action.  Only an affirmative move to continue reform can keep the progress going.

The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. About 2.1 million people are incarcerated in this country, the vast majority in state and local facilities.  Mass incarceration contributes significantly to the poverty rate. It is inequitable, placing a disproportionate burden on communities of color. It is wildly expensive, in some cases costing more to keep an 18-year-old in prison than it would to send him to Harvard.  Our criminal justice system costs $270 billion annually, yet does not produce commensurate public safety benefits.

Research conclusively shows that high levels of imprisonment are simply not necessary to protect communities.  About four out of every ten prisoners are incarcerated with little public safety justification.  In fact, 27 states have reduced both imprisonment and crime in the last decade.  A group of over 200 police chiefs, prosecutors, and sheriffs has formed, whose founding principles state: “We do not believe that public safety is served by a return to tactics that are overly punitive without strong purpose . . . we cannot incarcerate our way to safety.”

In cities, states, and at the federal level, Republicans and Democrats have joined this effort.  They recognize that today’s public safety challenges demand new and innovative politics rooted in science and based on what works. The opioid epidemic, mass shootings, and cyber-crime all require modern responses that do not repeat mistakes of the past.

Crime is no longer a wedge issue, and voters desire reform.  A 2017 poll from the Charles Koch Institute reveals that 81 percent of Trump voters consider criminal justice reform important.  Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters.

But the politician with the loudest megaphone has chosen a different, destructive approach.  Donald Trump, and his Attorney General Jeff Sessions, falsely insist there is a national crime wave, portraying a country besieged by crime, drugs, and terrorism — “American carnage,” as he called it in his inaugural address.

But, crime in the United States remains at historic lows.  While violent crime and murder did increase in 2015 and 2016, new data show crime and violence declining again in 2017. The national murder rate is approximately half of what it was at its 1991 peak.  Those who seek to use fear of crime for electoral gain are not just wrong on the statistics; they are also wrong on the politics.

Now, to continue the progress that has been made, it is up to candidates running for office to boldly advance policy solutions backed by facts, not fear.  This report offers reforms that would keep crime low, while significantly reducing incarceration.  Most solutions can be enacted through federal or state legislation.  While most of the prison population is under control of state officials, federal policy matters too.  The federal government’s prison population is larger than that of any state.  Further, Washington defines the national political conversation on criminal justice reform.  And although states vary somewhat in their approach to criminal justice, they struggle with similar challenges. The state solutions in this report are broadly written as “models” that can be adapted.

Steps to take include:

• Eliminating Financial Incentives for Incarceration

• Enacting Sentencing Reform

• Passing Sensible Marijuana Reform

• Improving Law Enforcement

• Responding to the Opioid Crisis

• Reducing Female Incarceration

March 23, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

En banc Sixth Circuit rejects, with some dubitante, effort to extend Sixth Amendment right to counsel to preindictment plea negotiations

The Sixth Circuit this morning made my pile of weekend reading a bit longer and a bit more interesting by handing down an extended en banc ruling in Turner v. United States, No. 15-6060 (6th Cir. March 23, 2018) (available here), I which a lot of judges have lots to say about the reach of the Sixth Amendment right to counsel. The opinion for the Court explains the issue and the reason the result is 10-4 in favor of the government:

Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations.  See United States v. Moody, 206 F.3d 609, 614– 15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)).  We decline to do so.  Our rule — copied word for word from the Supreme Court’s rule — is that the Sixth Amendment right to counsel attaches only “at or after the initiation of judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)); see also United States v. Gouveia, 467 U.S. 180, 188 (1984). The district court followed this rule, and we AFFIRM.

Notably, recent Trump appointee Judge Bush has a lengthy concurring opinion under the heading "DUBITANTE" which starts this way:

History sometimes reveals more import to words than they at first seem to have. And faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights. This case calls for such an examination.

And the dissent authored by Judge Branch gets started this way:

The majority opinion declares itself bound by “four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations,” reciting as its basis for this rule language from the 1972 Supreme Court case, Kirby v. Illinois, 406 U.S. 682, 689 (1972).  This reasoning misses the point of the case before us in several important ways.  By elevating general language to a static rule, it disregards the Supreme Court’s development across time of the law governing Sixth Amendment claims, particularly the Court’s practical recognition of the changing criminal justice system and its responsive jurisprudence extending the right to counsel to events before trial.  This reasoning also ignores the purpose of an en banc court — to determine whether existing circuit caselaw has failed to correctly understand or apply legal principles or Supreme Court precedent.  Finally and as ably explicated by Judge Bush’s historical analysis, relying on a rigid, mechanical approach closes the door to the apparent understanding of our Founders, including the authors of the Sixth Amendment, that Turner would have been recognized as an “accused.”

March 23, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Interesting (and important?) new polling data on the death penalty

Yesterday the results of a new Quinnipiac University Poll were released here, and the press release about the results start with this account of the results of questions about the death penalty (with my emphasis added):

In a simple question, American voters support the death penalty 58 - 33 percent for persons convicted of murder, according to a Quinnipiac University National Poll released today.

But when offered a choice between the death penalty or life in prison with no chance of parole, American voters choose the life option 51 - 37 percent, the first time a majority of voters backed the life without parole option since the independent Quinnipiac (KWIN-uh-pe-ack) University Poll first asked this question in 2004.

There are deep party and gender divisions as Republicans back the death penalty 59 - 29 percent. Backing the life option are Democrats 73 - 19 percent and independent voters 49 - 37 percent. Women back the life option 56 - 33 percent. Men are divided as 45 percent back the life option and 42 percent support the death penalty. American voters are more united as they oppose 71 - 21 percent, including 57 - 35 percent opposition among Republicans, imposing the death penalty for persons convicted of selling drugs that cause a lethal overdose. Voters say 75 - 20 percent that this use of the death penalty would not help stop the opioid crisis.

But voters say 64 - 31 percent that the death penalty should not be abolished nationwide. Democrats are divided as 47 percent say abolish the death penalty and 46 percent say don't abolish it. Every other listed party, gender, education, age and racial group is opposed to abolishing the death penalty.

"It's a mixed message on a question that has moral and religious implications. Voters are perhaps saying, 'Keep the death penalty, but just don't use it," said Tim Malloy, assistant director of the Quinnipiac University Poll. "Despite what President Donald Trump says, neither Democrats nor Republicans have the stomach for executing drug dealers," Malloy added.

The "mixed message" take away is obviously the right one, and it also means that both supporters and opponents of the death penalty can spin these results in any number of ways. But the result that only half of self-identified Democrats call for abolishing the death penalty strikes me as perhaps the most critical single finding and one that likely entails that the death penalty will not be abolished legislatively even in blue states in near future.

March 23, 2018 in Death Penalty Reforms | Permalink | Comments (8)

Thursday, March 22, 2018

Noting how Ohio judges and prison officials are sparring over law seeking to reduce prison readmissions

This new AP article, headlined "Judges, Ohio prison system at odds over bed reduction plan," reports on an interesting new difficulty within on-going Buckeye state efforts to reduce the prison population. Here are excerpts:

Judges and the state prison system are at odds over a new law meant to lower Ohio's inmate population by limiting the amount of time behind bars for low-level offenders who commit minor probation violations. At issue is a mandate capping the amount of time judges can send offenders to prison for violations like missing counseling appointments or committing misdemeanors.  The law enacted last year is part of a broader effort to save money and reduce crime by lowering Ohio's inmate population.  It affects inmates convicted of non-violent crimes such as drug possession, theft and fraud.

Under the law, judges can send inmates to prison for only 90 days for the least serious felony and 180 days for the next most serious.  But some judges say the law is unclear and are sending offenders to prison for longer sentences, often a year or more, according to the Department of Rehabilitation and Correction.  Judges also contend that the short sentencing caps lessen the incentive for repeat offenders to follow probation rules at all.

The state had counted on the law to decrease Ohio's inmate population by about 400 this year and as much as 1,100 next year, the prison system said.  Cynthia Mausser, the prison system's managing director of courts and community, noted that the longer such low-level offenders are "sitting in prison not becoming better people," the more time they spend "away from those pro-social programs and relationships and connections" that could help them... 

North Carolina put similar caps on certain probation violations in 2011 as part of changes to its sentencing laws. Colorado, Nevada and Tennessee have created stand-alone facilities for probation violators as alternatives to prison sentences, according to the National Conference of State Legislatures.

Ohio's prison system sent about 300 letters to judges in recent months alerting them that they went over the caps.  Prison officials don't have the authority to overrule judges, however, and so the longer sentences stayed in place. 

In southern Ohio, Robert Chambers violated his probation for a 2017 drug possession conviction in multiple ways, including admitted drug use and refusal to enter drug treatment, according to court records.  Chambers' attorney didn't return messages seeking comment.  Adams County Judge Brett Spencer finally sentenced Chambers to a year in prison, and was then singled out by the prison system for surpassing the three-month cap. "For not trying to become productive citizens, we give them a 75 percent bonus," Spencer said of the sentencing caps.

Mahoning County Judge John "Jack" Durkin said judges know it's better to focus on offenders' substance abuse problems, help them find jobs and complete their education. But at some point, especially after several violations, prison must be an option "to protect the public and punish the defendant," Durkin said.

March 22, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:

The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted.  Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.

As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts.  For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.

The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions.  In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA.  (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA.  And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)

As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill.  Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time.  In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA.  Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.

A few prior related posts:

March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 21, 2018

"Measuring Change: From Rates of Recidivism to Markers of Desistance"

The title of this post is the title of this notable new paper authored by Cecelia Klingele now available via SSRN. Here is the abstract:

Reducing the incidence of crime is a primary task of the criminal justice system, and one for which it rightly should be held accountable.  The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment.  This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of the criminal justice interventions, or of those who participate in them.  This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid stand-alone metric imposes on the criminal justice system a responsibility outside its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens.  Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. 

One such alternative is readily-available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends at all, but also by increasing intervals between offenses and patterns of de-escalating behavior.  These easily-obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate to positive (or negative) life change.  They also resemble more closely the ways in which other fields that address behavioral change, such as education, attempt to measure change over time.

Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection.  Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction.

March 21, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Highlighting new DAs working on new sentence review efforts to address excessive punishments

This Marshall Project article, headlined "The DAs Who Want to Set the Guilty Free: ‘Sentence review units’ would revisit harsh punishments from the past," spotlights ways prosecutors are now reconsidering past prosecutorial punitiveness.  Here is an excerpt:

None of these conviction review units [created in DA offices] have undertaken the far more ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime.  That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars.  “It might open the floodgates to reviewing thousands of sentences,” said Steven A. Drizin, a law professor at Northwestern University and an expert on wrongful convictions who said he supports sentence reviews.

Despite the daunting undertaking, the idea is gaining traction.  In Philadelphia, where former civil-rights attorney and public defender Larry Krasner was recently sworn in as district attorney, staffers are making plans for a sentence review program, likely the first of its kind in the country.  Nationally, nearly two dozen newly elected prosecutors are working with an advocacy organization called Fair and Just Prosecution to implement their own sentencing-review procedures in the coming year, said Miriam Krinsky, the group’s executive director and a former longtime federal prosecutor.

Such a massive undertaking is, like many of the ambitions of this new breed of prosecutors, far easier said than done.  Normally, courts allow a prosecutor to seek re-sentencing only in limited circumstances, such as when new evidence arises or when legislators pass a new sentencing law that needs to be applied retroactively.  For example, Maryland in 2016 revised its mandatory minimum sentences, with a clause allowing judges to use those changes to reduce the time that then-current prisoners were serving.  Sometimes, a prisoner can be rewarded with a reduced sentence for cooperating in a police investigation. The compassionate release process also lets corrections agencies and courts reduce sentences retroactively, usually when the prisoner is gravely ill.  But there is no mechanism in many states for requesting a new sentence for a current inmate simply because a newly elected prosecutor says it’s in the best interest of justice....

In Philadelphia, Patricia Cummings, head of the conviction integrity unit, already has a workaround in mind.  She said a group within the DA's office focused on sentencing — which she would likely direct but that still needs staff and funding — could start by looking into first- or second-degree murder cases the office prosecuted in the past.  In Pennsylvania, a conviction on those charges automatically ends in a sentence of life in prison without parole. More than 5,000 of the state’s prisoners are currently serving these sentences, the second-highest number in the nation, and about half are from Philadelphia.  If the unit identifies a case where they believe the facts did not warrant such a harsh sentence, it would ask the trial court to throw out the original conviction and accept a guilty plea on a lesser charge of third-degree murder or manslaughter. Those charges carry much lighter sentences. “We’re still kicking this around,” said Cummings, who previously ran the conviction integrity unit in Dallas....

Another precedent can be found in Seattle, where prosecuting attorney Dan Satterberg has been giving people in prison second chances for the past decade.  He and his staff review old cases in which defendants were banished to life in prison for relatively minor crimes, often under the state’s three-strikes-you’re-out law.  They then sign onto clemency petitions for some of those prisoners.  Three of the 16 prisoners who were effectively “re-sentenced” this way have committed new crimes since getting released. But, Satterberg said, “there’s no way to avoid that other than to leave everyone in prison forever.”

“I think a prosecutor has a continuing obligation to justice, past the sentencing date,” said Satterberg. “We have to be willing to roll up our sleeves, look through the files of old cases, and really... compare them to our contemporary law and practice.”

Most states don’t have such a robust clemency system that prosecutors can use it as a kind of back-door re-sentencing program.  In Pennsylvania, for example, only eight life sentences have been shortened through commutation since 1995.  State law requires a pardons board to agree unanimously on any such decision. That means the mechanism will have to differ by state, said Krinsky, the head of the prosecutors’ group.  It may even require lobbying efforts to pass new legislation granting DAs the power to file a special motion for amending a sentence.

I am very pleased to hear of these developments, though I cannot resist noting that I urged them nearly a decade ago in at a symposium about prosecutorial discretion at Temple School of Law.  A reprinting of my remarks appear here as Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010). Here is part of what I said back then:

I strongly believe that modem criminal justice systems ought to incorporate formally some type of prosecutor-driven safety valve on the back-end of the system, a straightforward and relatively simple way for prosecutors to be involved in assessing and publicly noting who may be among the [many thousands of] people currently incarcerated in the United States who they now think, after taking the time to take a sound, sober, and sensible second look, can be safely released from prison and returned to freedom.

I suppose I should enjoy being old enough to see some of my old ideas become new again.

March 21, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases"

United States Attorney General Jeff Sessions this morning issued a short "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions." Here is the full text of this memo:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation.  Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50.  In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge.  To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal.  This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases.  Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes.  Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)).  I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Notwithstanding AG Sessions saying in the first paragraph of this memo that "we cannot continue with business as usual," the last paragraph of this memo strikes me not too much of a change to business as usual.  My sense has always been that the feds will pursue "capital punishment in appropriate cases," especially for intentional murders in conjunction with drug dealing.  As this DPIC page highlights, one of three modern federal executions was of Juan Raul Garza, "a marijuana distributor, [who] was sentenced to death in August 1993 in Texas for the murders of three other drug traffickers."  And the DPIC federal death penalty page also suggests as many as 14 of the 61 persons already on federal death row are there for drug-related killings.

So it seems that federal prosecutors have long used "these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation." But I suppose it is still pretty significant for the US Attorney General to formally and expressly "strongly encourage federal prosecutors to use" various capital punishment statutes to combat our nation's drug problems.  The big practical question that follows, of course, is whether and when more federal capital prosecutions will be forthcoming and in what kinds of cases.

Prior related posts:

March 21, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Two more SCOTUS wins for criminal defendants in Ayestas and Marinello

The Supreme Court this morning released two opinions in argued criminal justice cases: Ayestas v. Davis, No. 16–6795(S. Ct. March 21, 2018) (available here) and Marinello v. United States, No. 16-1144 (S. Ct. March 21, 2018) (available here). Here are the line-ups of the votes by the Justices and the start of each opinion for the Court:

Ayestas v. Davis:

ALITO, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which GINSBURG, J., joined.

Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief.  Petitioner moved for funding under 18 U. S. C. §3599(f), which makes funds available if they are “reasonably necessary,” but petitioner’s motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings.

Marinello v. United States:

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

A clause in §7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.”26 U. S. C. §7212(a). The question here concerns the breadth of that statutory phrase. Does it cover virtually all governmental efforts to collect taxes? Or does it have a narrower scope? In our view, “due administration of [the Tax Code]” does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of income tax returns. Rather, the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit.

A busy day means I am unlikely to have much time to obsess over these two relatively small wins for defendants, but I do have time to make a quick comment about the voting particulars. Specifically, I think it notable in Ayestas that a state capital defendant got a unanimous vote in his favor from the Court and that in Marinello, both the Chief and the newest Justices voted with the majority in favor of the defendant rather than with Justice Thomas's dissent.

March 21, 2018 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"Gender Disparities in Plea Bargaining"

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

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society.  One area in which gender disparities have conversely favored women is the criminal justice system.  Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion.  This article addresses this gap by examining gender disparities in the plea-bargaining process.  The results presented in this article reveal significant gender disparities in this stage of the criminal justice system.

Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced.  These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating gender disparities.  While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment.  These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.

Building upon these results and the existing literature documenting racial disparities in criminal case outcomes, the article explores the intersection of gender and race in determining disparities in the plea-bargaining process.  The results indicate that gender and racial disparities complement each other in a way that yields additive effects. The charge reduction rate for white female defendants is more than double that of black male defendants.  White male and black female defendants experience similar charge reduction rates, in-between those of white female and black male defendants.  Consistent with the pattern of gender disparities documented in the article, these inter-group disparities are greater in cases involving misdemeanor offenses and defendants with no prior convictions.

Prior related post:

March 20, 2018 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

March 20, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 19, 2018

"Informed Misdemeanor Sentencing"

The title of this post is the title of this notable new paper authored by Jenny Roberts now available via SSRN. Here is the abstract:

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant.  But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future.  Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future.  Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform.

This Article’s goal is two-fold.  First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing.  Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case.  Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.  In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.

March 19, 2018 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

This FoxNews piece, headlined "Trump declares war on opioid abuse, calls for death penalty for traffickers, more access for treatment," provides some details on Prez Trump's comments on the opioid crisis today in New Hampshire.  Here are excerpts:

Speaking from one of the states hardest hit by the opioid epidemic, President Trump on Monday laid out a battle plan that calls for harsher sentences — and even the death penalty — for traffickers.

Trump called for expanded treatment options for victims in the Manchester, N.H., speech, but leveled most of his emphasis on beefed-up enforcement. And he heaped plenty of scorn on the people he believes are responsible for as many as 42,000 U.S. deaths per year. "These are terrible people and we have to get tough with those people," Trump said of traffickers and dealers. "This isn’t about committees... this is about winning a very tough problem."

"The ultimate penalty has to be the death penalty," Trump said, before musing, "maybe our country is not ready for that."

Trump wants Congress to pass legislation reducing the amount of drugs needed to trigger mandatory minimum sentences for traffickers who knowingly distribute certain illicit opioids. The death penalty would be pursued where appropriate under current law. Justice Department says the federal death penalty is available for several limited drug-related offenses, including violations of the "drug kingpin" provisions in federal law.

Trump reiterated an observation he has shared several times before — that a person in the U.S. can get the death penalty or life in prison for shooting one person, but that a drug dealer whose actions could lead to thousands of overdoses can spend little or no time in jail.

The president said the federal government may consider aggressive litigation against pharmaceutical companies deemed complicit in the crisis. "Whether you are a dealer or doctor or trafficker or a manufacturer, if you break the law and illegally peddle these deadly poisons, we will find you and we will arrest you and we will hold you accountable," Trump said.

Trump singled out Mexico and China as main sources of illicit opioids. A Drug Enforcement Administration report last year said: "Seizures indicated that China supplies lower volumes of high-purity fentanyl, whereas fentanyl seizures from Mexico are higher volume but lower in purity."...

Trump also announced a nationwide public awareness campaign, as well as increased research and development through public-private partnerships between the federal National Institutes of Health and pharmaceutical companies. He announced a new website, Crisisnextdoor.gov, where people can share their stories about addiction. The hope is that horror stories will scare people away from behavior that could lead to addiction. The Trump administration aims to see the number of filled opioid prescriptions cut by one-third within three years.

A third part of the plan addresses improving access to treatment and recovery programs that have proven effective. Many health professionals, relatives of those who have died of overdoses and people who have experienced addiction to opioids have been pushing for treatment to be a key component of any campaign to fight the epidemic. "Failure is not an option," the president said. "Addiction is not our future. We will liberate our country from this crisis."...

Meanwhile, Congress plans to weigh a range of bills targeted at curbing the epidemic. The bills cover everything from improving access to treatment to intercepting shipments of illicit opioids en route to the United States. "Our recommendations will be urgent and bipartisan, and they will come very quickly," said Sen. Lamar Alexander, R-Tenn., chairman of the Senate Health, Education, Labor and Pensions Committee, according to published reports.

Interestingly, though the media (and Prez Trump himself in his spoken remarks) are making much of the death penalty and other tough-on-crime pieces of the plan, this official White House accounting of the plans, described as "President Donald J. Trump’s Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand," gives significantly more attention to public health elements and actions.

Prior related posts:

March 19, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (6)

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Three Justices join Justice Breyer questioning how Arizona's death penalty system operates

Many month ago, as highlighted here, the cert petition in Hidalgo v. Arizona generated considerable attention.  That matter ended today when the petition for a writ of certiorari was denied, along with this lengthy statement by Justice Breyer joined by Justices Ginsburg, Sotomayor and Kagan. I was expecting some Justices to say something really notable after all this build up, by the statement ends this way:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.  That evidence is unrebutted. It points to a possible constitutional problem.  And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courtsbelow in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).  Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.  Capital defendantsmay have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.

Meh.

March 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Legal Punishment and Free Will: An Epistemic Argument Against Retributivism"

The title of this post is the title of this new paper authored by Gregg Caruso recently posted to SSRN. Here is its abstract:

Within the United States, one of the most prominent justifications for legal punishment is retributivism.  This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong — this could include pain, deprivation, or death.  For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment.  This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.  A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions.  Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing.  And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.”

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it.  One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism.  In Section 1, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism.  In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it.  I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment.  I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice.  I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

March 19, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, March 18, 2018

Prez Trump reportedly to call for more capital cases under current federal laws, but not seeking new death penalty laws

Ever since Prez Trump starting talking up his affinity for using the death penalty for drug dealers, I have been wondering if he was planning to call for Congress to develop new capital statutes to help pursue that end.  But, according to this new Wall Street Journal piece, a big speech coming from Prez Trump on Monday will only call for more capital cases to be brought under existing federal criminal laws.  The WSJ piece carries this full on-line headline "Trump’s Opioid Battle Plan Includes Seeking More Death-Penalty Prosecutions: The president will ask the Justice Department to press more cases against drug traffickers under current law."  Here are highlights:

President Donald Trump on Monday will call for new steps to combat the opioid epidemic, including a push to reduce opioid prescriptions by a third over three years, asking the Justice Department to seek more death-penalty cases against drug traffickers under current law, and for federal support to expand the availability of overdose-reversal medication.

The proposals will come in a speech in the hard-hit state of New Hampshire. They form part of a broader blueprint by Mr. Trump, which senior White House officials on Sunday described as seeking to deploy education, law enforcement and treatment to try to reverse abuse of particularly addictive drugs that claim the lives of more than 100 people a day in the U.S.

Other elements of the strategy, the White House said, would include a fresh public-awareness campaign about drug abuse, a research-and-development partnership between the National Institutes of Health and pharmaceutical companies into opioid prescription alternatives, tougher sentences for fentanyl traffickers, and screening of all prison inmates for opioid addiction.

But it is the death penalty proposal that is likely to dominate discussion of the package.  “The Department of Justice will seek the death penalty against drug traffickers when it’s appropriate under current law,” said Andrew Bremberg, the president’s top domestic-policy adviser.

Senior White House officials referred specific questions about the death-penalty stance to the Justice Department but emphasized that the administration was seeking to use current law rather than call for a new federal statute.

A 1988 federal law imposes the death penalty on drug “kingpins” who commit murder in the course of their business.  Some legal analysts say that it has resulted in dozens of sentences but few executions since then.  John Blume, a law professor at Cornell Law School and director of its death-penalty project, said the statute as enforced to date typically has ensnared “mid- to low-level drug dealers…None of them were really objectively the people they said they were going to get.”...

In November, a presidential commission headed by Mr. Trump’s one-time political rival for the Republican presidential nomination, former Gov. Chris Christie of New Jersey, issued a 56-recommendation report that included calls for the federal government to set up drug courts across the U.S., retrain medical prescribers on opioid use and reduce incentives for doctors to offer the powerful painkillers. It also called for engaging with states to expand access to naloxone, an overdose-reversal drug. The administration accepts all 56 recommendations, a senior White House official said Sunday.

At a brief appearance at a White House summit on opioids earlier this month, Mr. Trump openly mused that other countries allow the death penalty for drug trafficking and that he believed they had less of a drug problem as a result. He said that translated into a need for more “strength.” He offered few further details, saying only that he also wanted to see the federal government bring legal action against opioid manufacturers, because “if the states are doing it, why isn’t the federal government doing it?”

Such remarks had sparked speculation that Mr. Trump would seek a new death penalty for drug trafficking, and with it, a revived debate about the permissibility of such laws under the constitutional amendment prohibiting cruel and unusual punishment. The Supreme Court has rejected capital punishment for crimes such as child rape in recent years and has taken a narrower view of arguments that seek to execute people for indirectly causing deaths through criminal actions.

Prior related posts:

March 18, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....

[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
  • Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
  • Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Friday, March 16, 2018

New Philly DA puts forward new policies intended to "end mass incarceration and bring balance back to sentencing"

Web-larry-krasner-winner-1024-x-576This Slate article, headlined "Philadelphia’s New Top Prosecutor Is Rolling Out Wild, Unprecedented Criminal Justice Reforms," reports on the remarkable new policies put forward by the former defense attorney who is the newly elected Philly DA.  Here are highlights:

On Tuesday, Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”

The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.

“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.

Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.

In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”

The policies memo is available at this link, and all sentencing fans will want to check out the entire document.

March 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

The latest account of Trump Administration's latest punitive ideas for responding to drug problems

Politico has this lengthy new article reviewing the soon-to-be-released (and perhaps still in development) plan from the Trump Administration to respond to the opioid crisis and other drug problems.  The piece is headlined "Trump finalizing opioid plan that includes death penalty for dealers," and here are excerpts (with an emphasis on punishment pieces though it seems there will be important public health parts to the coming plan):

The Trump administration is finalizing a long-awaited plan that it says will solve the opioid crisis, but it also calls for law enforcement measures — like the death penalty for some drug dealers — that public health advocates and congressional Republicans warn will detract from efforts to reverse the epidemic.

The ambitious plan, which the White House has quietly been circulating among political appointees this month, could be announced as soon as Monday when President Donald Trump visits New Hampshire, a state hard hit by the epidemic. It includes a mix of prevention and treatment measures that advocates have long endorsed, as well as beefed-up enforcement in line with the president’s frequent calls for a harsh crackdown on drug traffickers and dealers.

Trump’s plan to use the death penalty in some cases found at least one fan among congressional Republicans: Rep. Chris Collins of New York, one of the president’s most consistent cheerleaders. “I’m all in on the capital punishment side for those offenses that would warrant that,” he said when asked about the plans Thursday afternoon. “Including drug cases. Yep.”

But several congressional Democrats said they were alarmed by Trump's plan to ramp up punishment. “We are still paying the costs for one failed 'war on drugs,' and now President Trump is drawing up battle plans for another," said Sen. Ed Markey of Massachusetts. "We will not incarcerate or execute our way out of the opioid epidemic."

The White House's most concrete proposal yet to address opioids comes after complaints from state health officials and advocates that Trump has moved too slowly to combat the epidemic after his bold campaign promises to wipe out the crisis touching all parts of the country.

However, the plan could cost billions of dollars more than Trump budgeted — and likely far more than any funding package that Congress would approve — raising questions about how much of it can actually be put into practice. Trump's emphatic embrace of the death penalty for some drug dealers has also alarmed some advocates, who say the idea has been ineffective when tried in other countries and resurrects the nation’s unsuccessful war on drugs.

Under the most recent version of the plan, which has gone through several revisions, the Trump administration proposes to change how the government pays for opioid prescriptions to limit access to powerful painkillers. It also calls on Congress to change how Medicaid pays for treatment, seeking to make it easier for patients with addictions to get inpatient care. It would also create a new Justice Department task force that more aggressively monitors internet sales....

POLITICO obtained two versions of the White House plan and spoke with four individuals who have reviewed it. The White House confirmed that a plan was in development but didn’t respond to multiple requests for further comment. Many of the measures in the plan were recommended by the president’s opioids commission last fall or discussed at a March 1 White House opioid summit. For instance, it endorses a long-promised priority: greatly expanding first responders' access to naloxone, a medication used to reverse opioid overdoses. It also calls on states to adopt a prescription drug monitoring database that health care providers can access nationwide to flag patients seeking out numerous opioid prescriptions.

On the policing side, the plan would ramp up prosecution and punishment, underscoring the tension in how public health advocates and law enforcement officials approach the crisis. Public health advocates say the nation's opioid epidemic should be treated as a disease, with emphasis on boosting underfunded treatment and prevention programs. But some law enforcement officials back tougher punishments as a deterrent, especially for drug dealers. The two camps don’t always see eye-to-eye, at times pitting HHS and DOJ officials against each other. “There is a lot of internal dissension between the health folks and the enforcement folks,” said an official involved in the crafting of the plan.

While Trump this month repeatedly suggested using the death penalty to deter drug dealers and traffickers — an idea roundly opposed by public health advocates — many lawmakers have said they weren’t sure whether to take the idea seriously. “I would have to strongly evaluate and look at any proposal like that,” said Sen. Dan Sullivan (R-Alaska) on Wednesday. “I don’t know if the president was serious or just said it off the cuff. … It’s a big issue when you decide to bring a capital case or pass a law that allows for capital punishment.”

According to language circulating this week, the Trump administration will call for the death penalty as an option in "certain cases where opioid, including Fentanyl-related, drug dealing and trafficking are directly responsible for death."

Sen. Shelley Moore Capito (R-W.Va.), whose home state is one of the hardest hit by the opioid epidemic, said she doesn't support the death penalty for drug cases. “I mean, I get the message he’s delivering: We’ve got to treat it seriously,” she said. “I don’t see that that’s going to solve the problem.”

The White House plan also calls for making it easier to invoke the mandatory minimum sentence for drug traffickers who knowingly distribute illegal opioids that can be lethal, like fentanyl. It also proposes a new Justice Department task force known as “Prescription Interdiction and Litigation,” or PIL, which would be empowered to step up prosecutions of criminally negligent doctors, pharmacies and other providers.

As serious sentencing fans perhaps already realize, though any proposal for the death penalty for drug dealers is sure to garner a lot of attention, proposals to expand the reach or application of mandatory minimum sentences are sure to be far more consequential to the day-to-day operation of the federal criminal justice system.

Prior related posts:

March 16, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Thursday, March 15, 2018

"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"

The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

  • In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
  • Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
  • As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

  • While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
  • The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.

  • The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
  • Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
  • Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

  • The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
  • The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
  • Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

  • Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
  • However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
  • Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

  • Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
  • The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
  • Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
  • Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Wednesday, March 14, 2018

Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution

Images (3)As detailed in this new CNN piece, headlined "Oklahoma plans to use new execution method," the Sooners are soon to be trying a novel execution protocol. Here are the details:

Unable to obtain drugs to use for its lethal injections, Oklahoma will use inert gas inhalation as the primary method for death penalty executions once a protocol is developed and finalized, the state's attorney general announced Wednesday. Oklahoma is the first state to adopt this method.

"As you know, in Oklahoma, a bill that was signed back in 2015 by the governor states that if lethal injection is held unconstitutional or is unavailable, an execution shall be carried out by nitrogen hypoxia," Attorney General Mike Hunter said. "We are exercising that option." Nitrogen is one of several inert gases that can cause hypoxia, an oxygen deficiency that causes death.

Oklahoma Department of Corrections Director Joe M. Allbaugh said his office will prepare the legal documents within the next 90 to 120 days and, if that's acceptable, the attorney general will move forward with the protocol. Hunter said the state is "at the very beginning of this process ... and will provide updates as they become available."

Currently, 49 people sit on death row in Oklahoma; 16 have exhausted their ability to appeal their cases, Allbaugh said. The state has struggled to find legally obtainable lethal injection drugs, he said. It previously used a three-drug combination: an anesthetic (either sodium thiopental, pentobarbital or midazolam), a paralytic agent (pancuronium bromide) and a heart-stopping agent to cause death (potassium chloride), according to the nonprofit Death Penalty Information Center....

The bipartisan Oklahoma Death Penalty Review Commission issued a study of the death penalty in the state on April 25. The report concluded that the moratorium should remain in place until significant reforms to the death penalty process are made, and recommended a one-drug barbiturate execution protocol.

But Hunter said inert gas inhalation is used in countries that have legalized assisted suicide. A 2010 Journal of Medical Ethics study, based on experiments performed by Swiss organization Dignitas, found that the dying process of oxygen deprivation caused by an inert gas is "potentially quick and appears painless." "It also bypasses the prescribing role of physicians, effectively demedicalizing assisted suicide," the researchers wrote.

Hunter said that "using an (inert gas inhalation) will be effective, simple to administer, easy to obtain and requires no complex medical procedures." "Research has shown that individuals exposed to an excessive amount of inert gas experience fatigue, dizziness, perhaps a headache, loss of breath and eventual loss of consciousness," he said, citing the US Air Force Flight Surgeon's Guide, which looks at cases of pilots breathing excessive amounts of inert gas.

Hunter said that people who die by inhalation of inert gases are dead within just a few minutes. The method is "safest, best and most effective," he said.

By contrast, the American Veterinary Medical Association's Guidelines for the Euthanasia of Animals recommend the use of nitrogen for chickens, turkeys and pigs but say it's unacceptable for other mammals. "These gases create an anoxic environment that is distressing for some species," the authors say.

Oklahoma re-enacted the death penalty in 1973 and, since 1976, has performed 112 executions. Hunter noted that an overwhelming majority of the Oklahoma electorate voted to amend the Constitution and guarantee the state's power to impose capital punishment two years ago.

March 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11)

Interesting data from the US Courts on federal criminal justice caseloads in FY 2017

The Administrative Office of the U.S. Courts yesterday released here is Annual Report on "Judicial Business 2017" providing lots of statistics on the work of the federal Judiciary for the fiscal year ending September 30, 2017. Here are some criminal justice-related items from data pages here and here that caught my eye:

This year, filings in the U.S. courts of appeals declined 16 percent to 50,506. Total filings in the U.S. district courts decreased 7 percent to 344,787 as civil case filings dropped 8 percent to 267,769, although filings for criminal defendants remained relatively stable at 77,018....

Filings in the regional courts of appeals, which rose 15 percent the previous year, dropped 16 percent to 50,506 in 2017. Filings by pro se litigants, which accounted for 50 percent of new cases, went down 20 percent. Civil appeals grew 1 percent. Criminal appeals fell 14 percent.

Filings for criminal defendants (including those transferred from other districts) remained stable, decreasing less than 1 percent to 77,018.

The biggest numeric decline was in filings for defendants charged with property offenses, which fell 6 percent to 10,115 filings and accounted for 13 percent of total criminal filings.  Filings for defendants charged with fraud, which constituted 9 percent of total filings and 71 percent of property offense filings, dropped 5 percent to 7,165.  Fraud filings related to identification documents and information, which are often associated with immigration crimes, decreased 16 percent to 639.

Drug crimes remained the offenses prosecuted most frequently in the U.S. district courts, constituting 32 percent of all defendant filings. Filings for defendants charged with crimes related to marijuana decreased 19 percent to 4,181.  Filings for non-marijuana defendants rose 4 percent to 20,175.  Filings related to the sale, distribution, or dispensing of illegal drugs decreased 17 percent to 2,249 for marijuana and rose 1 percent to 17,560 for all other drugs.

Criminal filings for defendants charged with immigration offenses fell 2 percent to 20,438 and accounted for 27 percent of criminal filings. This was the lowest total since 2007. Defendants charged with improper reentry by an alien decreased 3 percent to 16,554, and those charged with improper entry by an alien dropped 12 percent to 172.  Immigration filings in the five southwestern border districts declined 7 percent to 15,638 and constituted 77 percent of national immigration defendant filings, compared to 81 percent in 2016.  Filings fell 32 percent in the District of New Mexico, 16 percent in the Southern District of Texas, and 5 percent in the District of Arizona, but rose 51 percent in the Southern District of California and 6 percent in the Western District of Texas.

General offense defendants declined 5 percent and amounted to 2 percent of total criminal filings. Reductions also occurred in filings related to violent offenses (down 1 percent) and sex offenses (also down 1 percent); each of these categories constituted 4 percent or less of total criminal filings.

Filings for defendants prosecuted for firearms and explosives offenses rose 11 percent to 9,672 and represented 13 percent of total criminal filings. Filings involving justice system offenses, which increased 5 percent, constituted 1 percent of total criminal filings. Defendants charged with regulatory offenses grew 3 percent and accounted for 2 percent of total criminal filings. Traffic offense filings increased 2 percent to 2,292 and accounted for 3 percent of total criminal filings.

Because FY 2017 ending in Sept 2017 really represents a big transition year at the executive branch, it is way too early to draw too much from these data concerning the patterns of prosecution we might expect during the Trump years. But these data present an interesting baseline from which to look for notable patterns that might develop in the years ahead.

March 14, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Data on sentencing | Permalink | Comments (1)

Tuesday, March 13, 2018

"Principles of Risk Assessment: Sentencing and Policing"

The title of this post is the title of this new essay by Christopher Slobogin recently posted to SSRN. Here is the abstract:

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making.  To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs).  RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged.  But RAIs bring with them their own set of controversies.

In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases.  After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing.  While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well.

March 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (1)

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs

As noted in this prior post, last year the United States Sentencing Commission had a public hearing exploring alternatives to incarceration programs and synthetic drugs.  This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses at that prior 2017 heading, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

Tomorrow, as detailed on this USSC webpage, the United States Sentencing Commission in scheduled to conduct another public hearing on these topics (in part because the USSC never formally moved forward with any guidelines amendments on these topics because of an incomplete membership). As the new hearing page details, "the purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Synthetic Drugs and First Offenders/Alternatives to Incarceration."

March 13, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Monday, March 12, 2018

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

March 12, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

March madness + spring break = light blogging

A host of great distractions this Spring Break week will likely mean  more time away from the computer and thus less blogging in this space.  The Murphy’s Law of blogging would suggest that we will get a lot of blog-worthy sentencing developments while I am away, but perhaps there will be a relative calm in the sentencing waters before SCOTUS gets back in action next week.  

March 12, 2018 in On blogging | Permalink | Comments (2)

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

The title of this post is the title of this notable new Issue Brief from Pew with a message summarized by the document's subtitle: "Data show no relationship between prison terms and drug misuse." Here is the document's overview:

Nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980.  These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

As the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems.  To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies.  The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings — which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017 — reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.  The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

March 11, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

"'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is its abstract:

Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal clemency process. His clemency initiative, however, was hardly the unqualified success that he claims.

Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014.  That would have allowed the thousands of clemency decisions he made to be handled at a more reasonable pace and probably more accurately.  He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender.  Finally, he should have reformed the clear structural defect in the federal clemency process.  The Department of Justice controls the clemency application process even though, as the agency that prosecuted every clemency applicant, the department suffers from an actual or apparent conflict of interest.  In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

March 11, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, March 10, 2018

Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers

In reported in prior posts here and here, Prez Trump has reportedly talked privately about how drug dealers are as bad as serial killers and has talked publicly about using the "ultimate penalty" to address drug problems. Now according to this new Washington Post article, headlined "Trump administration studies seeking the death penalty for drug dealers," these musings by President Trump are now a policy proposal being seriously examined by the administration:

The Trump administration is studying new policy that could allow prosecutors to seek the death penalty for drug dealers, according to people with knowledge of the discussions, a sign that the White House wants to make a strong statement in addressing the opioid crisis.

President Trump last week suggested executing drug dealers as a way to make a dent in opioid addiction. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

People familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying potential policy changes and that a final announcement could come within weeks. The White House has said one approach it might take is to make trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. White House officials also are studying tougher noncapital penalties for large-scale dealers.

Trump said last week that the administration would soon roll out unspecified “strong” policies on opioids. White House officials said Trump has privately expressed interest in Singapore’s policy of executing drug dealers. “Some countries have a very tough penalty, the ultimate penalty, and they have much less of a drug problem than we do,” Trump said during an appearance at a White House summit on opioids last week.

Trump also has endorsed Philippine President Rodrigo Duterte’s approach to the issue; Duterte’s “drug war” has led to the deaths of thousands of people by extrajudicial police killings. Last year, Trump praised Duterte in a phone call for doing an “unbelievable job on the drug problem,” according to the New York Times. Kellyanne Conway, counselor to the president, is leading much of the work on opioids for the White House. Singaporean representatives have briefed senior White House officials on their country’s drug policies, which include treatment and education, but also the death penalty, and they provided a PowerPoint presentation on that country’s laws.

Singapore’s model is more in line with the administration’s goals for drug policy than some other countries, a senior administration official said. “That is seen as the holistic approach that approximates what this White House is trying to do,” a senior administration official said....

Federal law currently allows for the death penalty to be applied in four types of drug-related cases, according to the Death Penalty Information Center: murder committed during a drug-related drive-by shooting, murder committed with the use of a firearm during a drug trafficking crime, murder related to drug trafficking and the death of a law enforcement officer that relates to drugs.

Peter H. Meyers, a professor at the George Washington University School of Law, said he doesn’t agree with the idea of adding more capital crimes for drug dealers, but he said it could be a legal approach: “It very likely would be constitutional if they want to do it.”

The administration’s directives come as prosecutors nationwide are cracking down on higher-level drug dealers and law enforcement officials are looking at increased penalties for fentanyl trafficking and dealing. But at the same time, public health officials — including those in the Trump administration — and many in law enforcement are emphasizing treatment rather than punitive measures for low-level users and those addicted to drugs.

Attorney General Jeff Sessions has directed federal prosecutors to pursue the most severe penalties for drug offenses.  The Department of Justice said last year it will aggressively prosecute traffickers of any fentanyl-related substance.

If (when?) we see a serious formal death penalty proposal for drug dealers, I will have a lot more to say on the topic. For now, I will be content with three "hot takes" (with number 3 to get a lot more attention if this discourse continues):

1. It is not at all clear that death sentences for drug dealers, even for those whose drugs cause multiple deaths, would be constitutional; it is entirely clear that the issue would be litigated extensively and would have to be definitively decided by the US Supreme Court.

2. If Prez Trump is truly interested in "executing drug dealers" rather than just sending them to death row, he needs to get his Justice Department to get serious about trying to actually execute some of the five dozens murderers languishing  on federal death row (some of whom have been on federal death row for two decades or longer).  

3. If the White House (and/or Attorney General Sessions) is seriously interested in a legislative proposal to make the "worst of the worst" drug dealers eligible for the death penalty, I would seriously urge Senate Judiciary Chair Chuck Grassley to consider adding the proposal to his Sentencing Reform and Corrections Act as part of an effort to get the White House and AG Sessions to support that bill.  Even if drafted broadly, any federal "death penalty for drug dealers" law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year.  And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.

Prior related posts:

UPDATE: Not long after this posting, Prez Trump gave a speech in Pennsylvania that, as reported in this new Washington Post piece, covered this ground and received a positive response for the audience:

President Trump on Saturday again called for enacting the death penalty for drug dealers during a rally meant to bolster a struggling GOP candidate for a U.S. House seat here. During the campaign event in this conservative western Pennsylvania district, the president also veered off into a list of other topics, including North Korea, his distaste for the news media and his own election victory 16 months ago.

Trump said that allowing prosecutors to seek the death penalty for drug dealers — an idea he said he got from Chinese President Xi Jinping — is “a discussion we have to start thinking about. I don’t know if this country’s ready for it.”

“Do you think the drug dealers who kill thousands of people during their lifetime, do you think they care who’s on a blue-ribbon committee?” Trump asked. “The only way to solve the drug problem is through toughness. When you catch a drug dealer, you’ve got to put him away for a long time.”

It was not the first time Trump had suggested executing drug dealers. Earlier this month, he described it as a way to fight the opioid epidemic. And on Friday, The Washington Post reported that the Trump administration was considering policy changes to allow prosecutors to seek the death penalty.

But on Saturday his call for executing drug dealers got some of the most enthusiastic cheers of the night. As Trump spoke about policies on the issue in China and Singapore, dozens of people nodded their heads in agreement. “We love Trump,” one man yelled. A woman shouted: “Pass it!”

March 10, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (6)

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room

I am pleased to report that President Donald Trump is continuing to make use of his clemency power during the first part of his first term.  A relatively high-profile case is yet again the subject of his activity, as reported in this Politico article headlined "Trump pardons sailor in submarine photos case." Here are the details:

President Donald Trump has pardoned a Navy submariner sentenced to prison for taking photos inside the classified engine room of a nuclear submarine, the White House announced on Friday.

Petty Officer First Class Kristian Saucier pleaded guilty in May 2016 to two felony counts, one for unlawful retention of national defense information and another for obstruction of justice, for taking cellphone pictures inside the Navy vessel and later destroying his own equipment upon learning he was under investigation.

“The president has pardoned Kristian Saucier, a Navy submariner,” White House press secretary Sarah Huckabee Sanders announced at a briefing with reporters. The Justice Department later confirmed the move. Sanders added that “the president is appreciative of Mr. Saucier's service to the country.”

The move marked just the second pardon Trump has granted since entering office, with the first extended in August to Joe Arpaio, the former Arizona sheriff who was convicted of criminal contempt of court in a case involving his tactics targeting undocumented immigrants.

Saucier was sentenced to 12 months in prison for mishandling classified information. Critics have cited the episode to allege a double standard in how low- and high-ranking U.S. officials handle sensitive material. The president brought the case back into public view in January, when he compared the treatment of Saucier with that of his former electoral opponent Hillary Clinton and her top campaign officials....

Prosecutors had sought a much steeper sentence for the former Navy machinist, calling for him to face six years in prison, but the judge gave a more lenient sentence, a point the White House highlighted in announcing his pardon. “The sentencing judge found that Mr. Saucier’s offense stands in contrast to his commendable military service,” Sanders noted.

Though I would like to see Prez Trump issuing many more clemency grants, particularly in lower-profile cases, I remain quite pleased that Prez Trump is continued to use his clemency powers more during his first three years in office than did the last three presidents combined.

Related post on prior clemency grants:

March 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Friday, March 9, 2018

Federal judges fives "Pharma Bro" Martin Shkreli (waaaaaay-below-guideline) sentence of 7 years

As reported in this AP piece, "Martin Shrkeli, the smirking “Pharma Bro” vilified for jacking up the price of a lifesaving drug, was sentenced Friday to seven years in prison for defrauding investors in two failed hedge funds."  Here is more on what seems like a pretty interesting sentencing hearing:

The self-promoting pharmaceutical executive notorious for trolling critics online was convicted in a securities fraud case last year unconnected to the price increase dispute.

Shkreli, his cocky persona nowhere to be found, cried as he told U.S. District Judge Kiyo Matsumoto he made many mistakes and apologized to investors. “I want the people who came her today to support me to understand one thing, the only person to blame for me being here today is me,” he said. “I took down Martin Shkreli.” He said that he hopes to make amends and learn from his mistakes and apologized to his investors. “I am terribly sorry I lost your trust,” he said. “You deserve far better.”

The judge insisted that the punishment was not about Shkreli’s online antics or raising the cost of the drug. “This case is not about Mr. Shkreli’s self-cultivated public persona ... nor his controversial statements about politics or culture,” the judge said, calling his crimes serious.  He was also fined $75,000 and received credit for the roughly six months he has been in prison.  The judge ruled earlier this week that Shkreli would have to forfeit more than $7.3 million in a brokerage account and personal assets including his one-of-a-kind Wu-Tang Clan album that he boasted he bought for $2 million.  The judge said the property would not be seized until Shkreli had a chance to appeal.

Prosecutors argued that the 34-year-old was a master manipulator who conned wealthy investors and deserved 15 years in prison.  His lawyers said he was a misunderstood eccentric who used unconventional means to make those same investors even wealthier.  Attorney Benjamin Brafman told Matsumoto Friday that he sometimes wants to hug Shkreli and sometimes wants to punch him in the face , but he said his outspokenness shouldn’t be held against him.  He said he deserved a sentence of 18 months or less because the investors got their money back and more from stock he gave them in a successful drug company.”...

Before sentencing him, the judge said that it was up to Congress to fix the issue of the HIV price-hike.  And she spoke about how his family and friends “state, almost universally, that he is kind and misunderstood” and willing to help others in need. S he said it was clear he is a “tremendously gifted individual who has the capacity for kindness.”

She quoted from letters talking about generous acts like counseling a rape victim, teaching inmates math and chess, and funding family members.  The defense had asked the judge to consider the letters in its case for leniency, including professionals he worked with who vouched for his credentials as a self-made contributor to pharmaceutical advances.

Other testimonials were as quirky as the defendant himself.  One woman described how she became an avid follower of Shkreli’s social media commentary about science, the pharmaceutical industry, but mostly, about himself.  She suggested that those who were annoyed by it were missing the point.  “I really appreciate the social media output, which I see on par with some form of performance art,” she wrote.

Another supporter said Shkreli’s soft side was demonstrated when he adopted a cat from a shelter — named Trashy — that became a fixture on his livestreams.  Another letter was from a man who said he met Shkreli while driving a cab and expressed his appreciation at how he ended up giving him an internship at one of his drug companies.

In court filings, prosecutors argued that Shkreli’s remorse about misleading his investors was not to be believed. “At its core, this case is about Shkreli’s deception of people who trusted him,” they wrote.

Prior related posts:

March 9, 2018 in Booker in district courts, White-collar sentencing | Permalink | Comments (11)

"The Reintegrative State"

The title of this post is the title of this timely paper authored by Joy Radice that has just been posted to SSRN.  Here is its abstract

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them.  A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families.  Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism.  Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance.  States have responded.  By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record.  Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship.  The stigma of a conviction follows them for a lifetime, even for the most minor crimes.

This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State.  It makes four contributions to the growing literature on collateral consequences and criminal records.  First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.  Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes.  Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records.  Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status.  To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release.  The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

March 9, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

"Can We Wait 75 Years to Cut the Prison Population in Half?"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it starts and concludes:

The U.S. prison population grew by more than 600% between 1973 and 2009 — from 200,000 people to 1.6 million.  Tough-on-crime policies expanded the number of imprisoned people even while crime rates plunged to 40% below their levels in the 1990s.  In recent years, policymakers and criminal justice professionals have implemented reforms to correct the punitive excesses of the past.  By yearend 2016 the number of people held in U.S. prisons had declined by 6% since a 2009 peak, and crime rates have continued to decline.

But the overall impact of reforms has been quite modest. With 1.5 million people in prison in 2016, the prison population remains larger than the total population of 11 states.3 If states and the federal government maintain their recent pace of decarceration, it will take 75 years — until 2093 — to cut the U.S. prison population by 50%.  Expediting the end of mass incarceration will require accelerating the end of the Drug War and scaling back sentences for serious crimes....

Just as mass incarceration was developed primarily as a result of changes in policy, not crime rates, so too has decarceration reflected changes in both policy and practice.  These have included such measures as drug policy sentencing reforms, reduced admissions to prison for technical parole violations, and diversion options for persons convicted of lower-level property and drug crimes.

The movement to end mass incarceration not only faces political reluctance to meaningfully reduce the U.S. prison population, it has also had to address renewed calls to further expand the prison population, including: increasing prison terms for immigration law violations, reversals of Obama-era reforms in federal sentencing, and punitive responses to the opioid crisis.  While defending the progress made in recent years, we must also strive for criminal justice reforms bold enough to tackle mass incarceration.

March 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, March 8, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Highlighting that registries are not only for sex offenders in many states

This new Marshall Project piece, headlined "Convicted of a Drug Crime, Registered with Sex Offenders," focuses on the broad reach of the offender registry employed in Kansas and debate over its reform.  I recommend the piece in full, and here are excerpts from the piece:

Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts.  Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder.  Tennessee added animal abuse.  Utah added white collar crimes.  A few states considered but abandoned plans for hate crime and domestic abuse registries.  At least five states publicly display methamphetamine producers.

But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders.  As deaths from opioids rise, some public officials have focused on addiction as a public health issue.  Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals.  At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.

The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry.  “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.

The Kansas law, first passed in 2007, now requires anyone convicted of manufacturing, distributing, or possessing “with intent to distribute” drugs other than marijuana to remain on the registry for a minimum of 15 years (and a maximum of life, for multiple convictions.)  During that time, they must appear at their county sheriff’s office four times a year, as well as any time they move, get a new job, email address, vehicle, or tattoo.  Most of this information is online, searchable by name or neighborhood, and members of the public can sign up to be emailed when an offender moves in or starts work near them.  (In 2013, when businesses expressed fear of vigilantes targeting registrants at work, lawmakers removed employment addresses from the website.)  During the quarterly sheriff visits, they must pay $20 and have their picture retaken; if they work or go to school in another county, they must register there as well.  “Any time I get a new job, I have to say, ‘Sorry, I need time off’ in the first 72 hours,” said Juston Kerns, 35, arrested for involvement in the sale of methamphetamine in 2014.

A few years ago, Wesley Harden — convicted in 2008 of selling methamphetamine after he led police on a high-speed chase — was arrested and charged with “failure to register.” Harden, 35, showed up as required, but he’d recently failed to report a jet ski as a new vehicle.  He doesn’t know for sure how the authorities discovered the jet ski, but thinks it has to do with pictures he posted on Facebook.  Harden received three years of probation, but the punishment for failing to register can include prison time, even if the original conviction was handled without incarceration.  Last year, 38 people were sent to prison over their failure to register for drug crimes, and the Kansas Sentencing Commission estimates that removing drug crimes would save the state roughly a million dollars each year....

Many law enforcement officials support the registry on public safety grounds. “People who sell drugs, there tends to be dangerous activity that takes place around their residence,” said Ed Klumpp, a retired Topeka police chief who lobbies for law enforcement at the legislature and opposes the current bill. “If you’re raising children in the neighborhood, it’s good to know there is someone down the street convicted of selling or manufacturing, so maybe they won’t send the kids to get candy there on Halloween.”

In recent years, lawyers around the country have argued to increasing success that registration requirements are unconstitutional.  One county in Colorado recently took its registry offline after a judge found it to be cruel and unusual punishment. California recently passed a law allowing sex offenders to be removed from the registry after 10 to 20 years if they have not committed another serious or violent felony or sex crime.

But beyond the legal questions are practical ones.  Little is known about whether registries prevent crime, and University of Michigan law professor J.J. Prescott has speculated that they may even facilitate crimes that involve buyers and sellers.  “Imagine I move to a new city and I don't know where to find drugs,” he said.  “Oh, I can just look up people on the registry!”

Evidence to support this theory is scant — and law enforcement leaders in Kansas say they have not encountered the problem — but at the February legislative hearing, Scott Schultz, the executive director of the Kansas Sentencing Commission, said he had learned of one registrant who found people at her door, looking to buy drugs.  They’d seen her address online. “I’ve called it, tongue in cheek, state-sponsored drug-dealing,” Schultz said, describing the registry as an “online shopping portal for meth and other drugs.”

March 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

March 8, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (6)