Tuesday, November 14, 2017

Notable protests and legal appeals as rapper Meek Mill's harsh sentence for probation violation shines light on back-end of justice system

ImagesKMOOADW6Because I do not know Pennsylvania's procedures, I have been a bit unsure how best to cover controversy over the 2-4 year prison sentence given to rapper Meek Mill for violating his probation from a 2008 gun and drug case.  This new CNN article, headlined "Outrage mounts over Meek Mill's prison sentence," provides some useful background on the case while reporting on the protest that took place at Philadelphia's Criminal Justice Center on Monday and highlighting that the "case has sparked outrage not just from the hip-hop community but from activists for criminal justice reform around the nation." 

Now this lengthy new Philadelphia Inquirer article, headlined "Meek Mill appeals sentence, asks city judge Brinkley to step down," provides a useful accounting of legal issues and related stories swirling around this case. Here are excerpts:

Lawyers for imprisoned Philadelphia-born rapper Meek Mill have launched what one lawyer called a “flurry of legal filings” to try to get the 30-year-old hip-hop star released from his 2- to 4-year prison term for violating the terms of his 10-year-old probation.

The first filing Tuesday — a day after hundreds of supporters met outside the city Criminal Justice Center demanding Mill’s release — asked Philadelphia Common Pleas Court Judge Genece E. Brinkley to disqualify herself from further involvement his case and allow a new judge to reconsider Mill’s prison sentence. The 14-page motion, buttressed by 143 pages of court transcripts, maintains that Brinkley, 61, a judge since 1993, had “assumed a non-judicial, essentially prosecutorial role in the revocation process,” and ignored the recommendations of the probation officer and prosecutor, neither of whom sought imprisonment.

The motion contends that Brinkley has gone beyond “the proper bounds of the judicial role, even as supervisor of a probationary sentence. Judge Brinkley has repeatedly offered inappropriate personal and professional advice to the defendant, who had become a successful professional entertainer during the pendency of this case. On some occasions, Judge Brinkley has done so off the record, or on the record while attempting inappropriately to keep that record secret from the defendant and his counsel.”

“Last week’s hearing was a farce,” said defense attorney Brian J. McMonagle. “It was a miscarriage of justice that lacked even the semblance of fairness. Today, we have asked this Judge to step aside so that a fair minded jurist can right this terrible wrong.”

McMonagle said he would file a motion seeking bail for Mill, who was taken into custody following the Nov. 6 hearing before Brinkley for violating his probation from a 2008 drug and gun case. McMonagle said Brinkley has 30 days to respond to the motions filed Tuesday. If she does not respond, Mill’s lawyers can take the case to Superior Court. For Mill, the problem with a Superior Court appeal is that, unless he is allowed bail pending appeal, he could serve his minimum sentence before a decision.

Nor does the Superior Court have a reputation for disturbing lower court sentences in such cases. An article in Sunday’s Inquirer reviewed seven Superior Court appeals of probation violation sentences imposed by Brinkley over the last four years. All were affirmed.

Mill, born Robert Williams, is now in the state prison at Camp Hill near Harrisburg undergoing evaluation before his permanent prison assignment. “He’s holding up OK,” said McMonagle, adding that Mill is in “protective custody” – in a single cell for 23 hours a day with one hour out for exercise.

A motion to reconsider the sentence is the first step in any criminal appeal to the state Superior Court, the intermediate appeals court between the trial courts and the state Supreme Court. Unless she modifies or vacates Mill’s sentence, Brinkley will be required to write an opinion for the appeals court explaining her reasons for sending him to prison.

At the Nov. 6 hearing during which Brinkley sentenced Mill, the veteran judge recounted almost 10 years of court proceedings in which he had violated his probation, and she had sentenced him to short periods in jail and then had extended his probation.

Mill’s most recent “technical violations” were testing positive for the prescription narcotic Percocet earlier this year and two misdemeanor arrests, for an altercation at the St. Louis airport and a traffic violation in Manhattan involving a motorbike.

Brinkley also reminded Mill of the night she actually tried to verify that he was feeding the homeless, part of the community service she ordered. She went to a Center City soup kitchen run by the Broad Street Ministry – and found him instead sorting clothes. “It was only when you realized that I came there to check on you that you decided to serve meals,” Brinkley told the rapper.

Mill’s lawyers contend the judge’s surreptitious visit was also questionable: “Judge Brinkley thereby made herself a fact witness on the question of whether Mr. Williams was in compliance on that occasion, as well as to any statements he may have made. Judge Brinkley then relied on her own version of this incident … among the reasons for imposing a state prison sentence.”

Mill’s lawyers contend that Brinkley also demonstrated a personal bias involving Mill in a private in-chambers meeting during a Feb. 5, 2016, probation-violation hearing. At that hearing, Mill’s then-attorney Frank DeSimone told Brinkley that Mill wanted to discuss his experiences performing community service but “would feel more comfortable relaying some of his thoughts and experiences” to the judge in private....

Joe Tacopina, a lawyer for Mill based in New York City – who was not in the private meeting – has said Brinkley asked Mill last year to record a version of a Boyz II Men ballad, “On Bended Knee,” and to mention the judge in it. Tacopina said Mill laughed off the request and told Brinkley: “I can’t do that. It’s not my music. I don’t sing that stuff. And I don’t do, like, you know, shout-outs to people in my songs.” Brinkley replied, “’OK, suit yourself,’” according to Tacopina.

Tacopina also alleged that Brinkley asked Mill to drop his current management, Jay-Z’s Roc Nation, and to return to Philadelphia-based Charles “Charlie Mack” Alston, who worked with Mill early in his career....

In a related development Tuesday, authorities dismissed a New York Post internet report that the FBI was investigating Brinkley’s role in recommending Mill return to Mack’s management. An FBI spokeswoman in Philadelphia said that, per Justice Department policies, her office could not confirm nor deny the existence of any investigation. However, a federal law enforcement official in the city said that he was not aware of any active probe into the matter.

November 14, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

U.S. Commission on Civil Rights issues statement in support of sentencing provisions of Sentencing Reform and Corrections Act of 2017

As reported in this news release, yesterday "the U.S. Commission on Civil Rights issued a statement in support of certain provisions in the Senate’s bipartisan Sentencing Reform and Corrections Act of 2017, which proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges in more cases." This three-page statement is available at this link, and here are excerpts (with footnotes omitted):

The U.S. Commission on Civil Rights, by majority vote, supports certain sentencing reduction provisions in the bipartisan Sentencing Reform and Corrections Act of 2017, recently introduced in the Senate.  The bill proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges on sentencing in more cases.  It moves sentencing levels down in many cases so that low-level crimes are adequately but not excessively punished.  It also makes retroactive sentencing reductions in crimes involving crack cocaine, which, prior to the enactment of the Fair Sentencing Act of 2010, were punished with extreme sentences compared with crimes involving powder cocaine.  The fair administration of justice requires criminal penalties to be proportional to the offense committed and for similar crimes to be subject to similar punishments. In addition, fair administration depends on public faith in the American justice system; this bipartisan bill takes important steps to restore the basis for that faith by addressing longstanding inequity.

The Sentencing Reform and Corrections Act contains necessary and important steps towards more equitable punishments in the federal system, advancing the fair administration of justice by better fitting punishment to crime.  If enacted, it would help reduce the outsize U.S. prison population without jeopardizing public safety.  It stands in contrast to the change in charging policy announced by the United States Department of Justice in May.  The Department of Justice’s policy regarding mandatory minimum sentences will result in lengthier, harsher prison sentences and additional taxpayer costs for both actual imprisonment and post-incarceration integration unless it is changed or checked by Congress through sentencing reform....

The application of harsher penalties and mandatory minimum sentences historically falls hardest on communities of color.  Although facially race-neutral, these policies have been applied in a racially disparate manner, raising concerns regarding legitimacy and fairness of our nation’s criminal justice system.  Use of mandatory minimum sentencing contributed to high incarceration rates for African-American and Latino men, despite comparable rates of drug use across communities of all races.  Devastating, community-wide impacts of these policies include one in nine children of color having a parent in prison.

National and international bodies have noted racially disparate treatment throughout the American criminal justice system, including in the application of mandatory minimum sentences.  Perhaps the most notable and egregious example of the racial disparities can be found in the different mandatory minimum sentences provided for offenses involving crack versus powder cocaine.  A bipartisan consensus in Congress passed the Fair Sentencing Act in 2010, reducing disparities between mandatory minimum sentences for different drugs, in part “because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences.” These changes should be made retroactive as the Sentencing Reform and Corrections Act of 2017 proposes in order to reduce excessive punishments for those already sentenced.

November 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"

This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:

The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system.  The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.

The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York.  In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....

“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased?  Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense?  As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”

“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:

  • Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.

  • In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations.  The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.

  • Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.

  • Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.

  • Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.

  • Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).

  • Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.

The report’s authors conclude with six recommendations, with guidance from previous research:

  • Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.

  • Build a risk-based system of pretrial practices to replace the current money-based bail system.

  • Keep youth out of confinement and the adult criminal justice system.

  • Review and modernize sentencing practices and policies.

  • Encourage local, community-driven solutions to crime through incentive funding.

  • Measure criminal justice success with better data collection and reporting.

“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”

November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

US Sentencing Commission releases new report on "Demographic Differences in Sentencing"

Via this webpage, the US Sentencing Commission provides a helpful summary and some key findings from its latest data publication titled ""Demographic Difference in Sentencing." The full 49-page report is available at this link, and here is the USSC's summary and accounting of key findings:

For this report [link in] prior two reports, The Commission used multivariate regression analyses to explore the relationships between demographic factors, such as race and gender, and sentencing outcomes.  These analyses were aimed at determining whether there were demographic differences in sentencing outcomes that were statistically significant, and whether those findings changed during the periods studied.

The Commission once again updated its analysis by examining cases in which the offender was sentenced during the period following the 2012 report.  This new time period, from October 1, 2011, to September 30, 2016, is referred to as the “Post-Report period” in this publication.  Also, the Commission has collected data about an additional variable — violence in an offender’s criminal history — that the Commission had previously noted was missing from its analysis but that might help explain some of the differences in sentencing noted in its work. This report presents the results observed from adding that new data to the Commission’s analysis....

Key Findings

Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:

1. Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.

2. Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.

3. Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.

4. Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.

These are really interesting (though not especially surprising) findings, and it will be interesting to see how the US Department of Justice and members of Congress pushing for federal sentencing reform might respond. I will need to take a little time to dig into some of the particular because providing my own assessment and spin, but I have always feared (and wrote an article a long time ago) that differences in the resources and abilities of defense counsel may create or enhance disparities in federal sentencing outcomes in ways that can not be easily measured or remedied.

November 14, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Monday, November 13, 2017

Interesting reviews of accomplishments and challenges in dealing with drug cases in West Virginia

At a time when there is so much talk about reforming how the criminal justice deals with low-level drug offenders, I found both encouraging and depressing this recent local story reporting on recent developments in West Virginia.  The article is headlined "Drug offenses straining already overburdened jail system, prosecutor says," and here are excerpts:

With its jails and prisons already bursting at the seams, Kanawha County Prosecuting Attorney Chuck Miller figures West Virginia is either going to have to come up with another way of handling drug offenders or plan on building more correctional facilities.  Miller recently discussed the available alternative sentencing options with a legislative committee tasked with looking at problems facing the state’s correctional system, points out jails and prisons here are understaffed and overflowing, in large part because drug addiction and the crimes associated with it have spiraled out of control.

How bad is it? According to the Department of Military Affairs & Public Security, 43 percent of the offenders processed at one of the state’s regional jails last year had to go through a detoxification protocol due to substance abuse issues....

It’s not a new problem, either. State leaders long ago realized the prison population was outstripping available resources and in 2012 decided to carve out a data-driven strategy to address it — realizing that, left unchecked, they’d have to spend at least $200 million to build more prison cells plus another $70 million a year in operating costs.  Rather than build more prisons, West Virginia opted to increase its reliance on community-based resources, including drug courts and day report centers.

They’ve not been without success: More than 1,300 adults and juveniles have graduated from drug court, typically an 18-24 month program that helps low-risk offenders.  As of March 2016, West Virginia’s drug courts had graduated 857 and 506 juveniles, in each case just over half of those who’d been accepted in the program.  About 500 more were still active in the program.  According to the West Virginia Supreme Court:

• Recidivism rates for adults after one year was reported to be 1.88 percent, and after two years, 9.4 percent — much lower than the nearly 80 percent recidivism rate for drug offenders who’d been incarcerated. Recidivism for juvenile graduates was said to be 14.6 percent, compared to 55.1 percent for youths in traditional juvenile probation programs.

• Per participant adult drug court program costs — about $7,100 for adults and $6,900 for juveniles — was a fraction of the per diem for housing adult offenders in regional jail (more than $17,000 per year) or prison (more than $28,000 per year).  Likewise, the state said it spent $6,900 to rehabilitate its juvenile drug court alumni — a fraction of what it would have cost to keep them in a secure juvenile facility, a group home or a hospital treatment facility.

Day Report Centers also provide intensive supervision and individualized services, including counseling, to non-violent offenders in lieu of incarceration, helping parolees reintegrate into society and saving millions in jail costs.  Kanawha’s Day Report Center, for example, said its program had saved more than $3 million in jail costs in 2016.  Since its inception in 2005, KDRC has graduated nearly 1,000 clients and had a recidivism rate under 13 percent.

Also in West Virginia’s sentencing toolkit: Pre-trial diversion agreements which allow first-time offenders to avoid jail by obtaining counseling and other treatment, and home confinement, allowing offenders to serve their sentence at home with electronic supervision in lieu of incarceration.  Participants generally must stay within range of a landline telephone and are subject to random drug and alcohol testing....

The programs aren’t without their challenges, however. Pre-trial diversions, for instance, require offenders to undergo treatment, but “availability of detoxification treatment facilities is sparce,” Miller notes.  Likewise, home confinement requires a home and a landline phone.

But, with an opiate epidemic showing no sign of slowing, he said West Virginia is going to have to find answers — even if means building a secure facility dedicated to treating offenders with drug dependencies, one they couldn’t walk away from, or expanding traditional jails and prisons.

“If we have a facility devoted to drug treatment, maybe we’d decrease crowding in our jails and increase our success with people,” Miller said, adding, “We’re not going to prosecute our way out of it and every solution ... requires money.”

November 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"The Boom and Bust of American Imprisonment"

The title of this post is the title of this new paper available via SSRN authored by Brandon Garrett. Here is the abstract:

We are teetering at the edge of a mass incarceration binge.  Lawmakers are reconsidering overly harsh criminal punishments.  At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis.  Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals.  Second, I discuss law professor Sam Buell's "Capital Offenses," an engaging book that examines why it is so challenging to punish business crimes due to the structure of the economy, corporations, and our federal criminal justice system.  Third, I turn to law professor Darryl Brown's "Free Market Criminal Justice," which explores the role of free market ideology in the divide in American criminal justice. 

I conclude by exploring the implications of these arguments and this research for mass incarceration as well as corporate accountability at the high and low ends of our criminal justice system — we are finally turning a corner on mass incarceration in this country, and the problems and solutions that these authors identify partly explain why and whether better things or new fears lie around that corner.  We are at a crossroads.  We need voices of reason like Soltes's, Buell's, and Brown's, today more than ever.

November 13, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Voting intrigue in SCOTUS capital case dissent on latest order list

The Supreme Court wrapped up its formal pre-Thanksgiving public activities toady with the release of this order list.  The list will surely generate news based on the granting of cert in three First Amendment cases, one dealing with abortion issues, one dealing with polling places, and one with some criminal procedure elements.  But sentencing fans, particularly those eager to predict the future of the Supreme Court's capital jurisprudence, will want to give some attention to this lengthy cert denial dissent by Justice Sotomayor in Reeves v. Alabama.  This dissent was joined (only) by Justices Ginsburg and Kagan, and it starts this way:

Petitioner Matthew Reeves was convicted by an Alabama jury of capital murder and sentenced to death. He sought postconviction relief in state court based on, as relevant here, several claims of ineffective assistance of trial and appellate counsel.  Among those claims, Reeves argued that his trial counsel was ineffective for failing to hire an expert to evaluate him for intellectual disability, despite having sought and obtained funding and an appointment order from the state trial court to hire a specific neuropsychologist.  His postconviction counsel subsequently hired that same neuropsychologist, who concluded that Reeves was, in fact, intellectually disabled.  Reeves contended that this and other evidence could have been used during the penalty phase of his trial to establish mitigation.

The Alabama Circuit Court held an evidentiary hearing on Reeves’ postconviction petition, at which Reeves presented substantial evidence regarding his intellectual disability and his counsel’s performance.  He did not, however, call his trial or appellate counsel to testify.  The court denied the petition, and the Alabama Court of Criminal Appeals affirmed. In doing so, the Court of Criminal Appeals explained that a petitioner seeking postconviction relief on the basis of ineffective assistance of counsel must question his counsel about his reasoning and actions.  Without considering the extensive record evidence before it regarding Reeves’ counsel’s performance or giving any explanation as to why that evidence did not prove that his counsel’s actions were unreasonable, the Court of Criminal Appeals held that Reeves’ failure to call his attorneys to testify was fatal to his claims of ineffective assistance of counsel.  The Alabama Supreme Court denied review.

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffectiveassistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule.  Instead, the dispute here is whether the Alabama Court of Criminal Appeals in fact imposed such a rule in this case.  I believe it plainly did so.  For that reason, I respectfully dissent from the denial of certiorari.

After this start, Justice Sotomayor goes on for 10+ pages to provide great detail on the proceedings below and the errors she sees therein.  Her dissent concludes with a call for a summary reversal and remand "so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance."  This concluding recommendation, along with length of the dissent, leads me to wonder if it was drafted with the hope that there would be five or more votes to send this case back to the Alabama courts given that, as Justice Sotomayor explains, Alabama itself "does not attempt to defend the Court of Criminal Appeals’ rule on its merits."

Of course, the issuance of this dissent shows that Justice Sotomayor could not get five or more votes to send this case back to the Alabama courts.  But, as SCOTUS fans know, only four votes are needed to grant certiorari, and Justice Breyer would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.  I am inclined to guess that Justice Breyer decided to issue a so-called "defensive denial" vote: as explained here, Justice Breyer's vote in Reeves may involve the "strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law."

Because I am not a SCOTUS procedure guru, I am not going to spend too much time speculating about what the voting dynamics might reveal in Reeves.  But in the wake of his Glossip opinion and other subsequent comments and votes, some have been coming to believe that Justice Breyer would now vote in favor of a capital defendant in any and every close or tough case.  His vote to deny cert in Reeves suggests that, in deciding how to resolve capital cert petitions, he is still concerned with matters other than just how he thinks he should resolve each and every particular capital case that comes before him.

November 13, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Might last week's voting results in Virginia help lead to voting rights for everyone, including those with criminal records?

The question in the title of this post is prompted by this extended HuffPost piece headlined "Democrats Just Won A Massive Victory For Voting Rights In Virginia." Here are excerpts:

On a night of Democratic victories, one of the most significant wins came in Virginia, where the party held onto the governor’s mansion. Democratic governor-elect Ralph Northam’s victory will enable him to expand voting rights to disenfranchised people and exert some control over the redistricting process.

The election had high stakes for voting rights. Virginia strips people of their right to vote if they are convicted of a felony, and those rights can only be restored by the governor. Gov. Terry McAuliffe (D) moved aggressively to restore rights to more than 168,000 former felons ― a policy Northam has said he is proud of and will continue.

In 2016, the nonprofit Sentencing Project estimated there were 508,680 people in Virginia who remained disenfranchised because of a felony conviction, meaning hundreds of thousands more could benefit from Northam’s policies. More than 1 in 5 people disenfranchised in the commonwealth because of a felony conviction were African-American, according to the organization....

Expanded voting rights restoration will benefit people like LaVaughn Williams and Brianna Ross, who are in their 50s and lost their right to vote decades ago, when they were convicted of felonies. Both women had their rights restored in the last year and voted for the first time in their lives on Tuesday, something they said made them feel like equal citizens. “If you had asked me maybe a year and a half, almost two years ago, I would’ve said ‘No,’ I didn’t never think I would vote,” Williams said on Tuesday after voting.

“Government and governors have come to the conclusion that even though we have not done a lot of good things in our lifetime, as far as I’m concerned, they have decided that they will put those past mistakes in the past and give us that second chance,” she said. “That’s all any person that’s an ex-felon can hope for, that second chance. Me getting my rights back is that second chance.”...

Voting rights became an important issue in the race after Northam’s Republican opponent, Ed Gillespie, used highly misleading television advertisements to criticize the policy of restoring voting rights to former felons. Gillespie also personally oversaw the Republican effort to win state legislators and draw electoral boundaries to the party’s advantage in 2010. The high stakes attracted attention from voting groups like Let America Vote and Holder’s National Democratic Redistricting Committee.

“Ralph Northam’s win tonight is a victory for every Virginian, a victory for the Democratic movement resisting President Trump’s disastrous administration and a victory for the protection of voting rights everywhere,” Jason Kander, the former Missouri secretary of state and president of Let America Vote, said in a statement. “Ralph made his defense of voting rights a campaign priority,” Kander said. “Virginians took notice, which is why they came from all over the commonwealth to join Let America Vote and many other groups to get out the vote.”

Though I am not aware of any exit polling that suggests that Northam swayed a large number of voters with his advocacy for voting rights, I suspect that Gilllespie's attack on restoring voting rights to former felons would have been given too much credit if he had secured a come-from-behind win. More generally, in a nation that rightly takes pride in democratic governance, I am ever hopeful that advocacy for expanding the franchise can and will generally prevail over advocacy for restricting the franchise.

Because I have long thought that the biggest problem with democracy in the US results from too few rather than too many people voting, I continue to adhere to the positions developed here in support of allowing even incarcerated felons the right to political participation through the voting booth. In this context, it is worth recalling that we fought a war for independence based in part on the slogan "no taxation without representation." In that tradition, I think until we hear someone making the case for felons to be exempt from taxation, we ought in turn be ever-suspicious of the case for preventing felons from voting.

November 13, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Sunday, November 12, 2017

Former state Arizona AG, only now, says his state's death penalty is "unconstitutional" and "bad policy"

Terry Goddard, who served as the Arizona's attorney general from 2003 to 2011, apparently just now got around to figuring out that how his state administers the death penalty makes it unconstitutional and bad policy.  He explains his new thinking in this commentary headlined "Arizona's 40-year experiment with the death penalty has failed."  Here are excerpts (with some emphasis added for my follow-up commentary):

As the attorney general, I was responsible for overseeing dozens of appeals from sentences of death.  Six people were executed during my tenure.  It was critical for me that we imposed the ultimate sanction only on those most deserving.

Tragically, our state has failed in this undertaking in fundamental ways.  The breadth of our statute, capturing nearly every first-degree murder, makes it unconstitutional.  But more than that, Arizona’s use of the death penalty is bad policy.

Arizona does not have a good track record for getting it right.  At least nine times our death penalty has swept up the innocent in its net.  Nationwide, 160 people have been exonerated from death row.  Getting it wrong once is one time too many.  Death, in its finality, means correcting a wrongful sentence is not an option.  Sentencing the innocent to die undermines the public’s confidence in the entire criminal justice system, and is reason alone to abandon the death penalty.

Moreover, Arizona’s death penalty scheme has unsettling racial disparities in its application.  People in Arizona who are accused of murdering white victims are more likely to receive the death penalty.  Hispanic men who are accused of murdering whites are more than four times as likely to be sentenced to death as white defendants accused of murdering a Hispanic victim.  Any other state policy with that sort of disparity would be quickly repudiated.  The Legislature should end this horrible death penalty malfunction.

The spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy.  These costs have caused the location of the crime to take precedence over its heinousness.  Several counties simply cannot afford to pursue the death penalty, creating imbalances having nothing to do with the crime....

The costs associated with defending Arizona’s statute (never mind the cases themselves) have been substantial. Dozens of convictions have been set aside because Arizona, unlike almost every other state, did not provide for jury sentencing in capital cases.  Arizona was one of two states to extend the death penalty to felony murders, leading to a rebuke by the Supreme Court and further reversals.  The Arizona Supreme Court narrowly interpreted our state’s prohibition on executing the intellectually disabled until they were recently forced to reconsider.  And case after case has been reversed because of flaws in the instructions given in capital sentencing proceedings....

We’ve been here before. In 1972, the court struck down every state’s death-penalty statute because they operated to execute a “capriciously selected random handful,” rather than the worst offenders.  Similar to other states’ efforts, then-state Sen. Sandra Day O’Connor and Rudy Gerber (who later became an Arizona judge) rewrote Arizona’s statute to comply with the court’s narrowing requirements by obligating the prosecutor to prove one or more aggravating factors before the death penalty could be imposed.

More than four decades have passed and we are back to square one.  Despite the efforts of O’Connor and Gerber, Arizona has failed to narrow the application of the death penalty and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders.

Though I am not an expert on the statutory and practical ins-and-outs of the death penalty in Arizona, I am pretty sure that the vast majority of the problems cited here by former state AG Goddard were plenty evident circa 2003 when he started serving his eight years at the top lawyer and law enforcement official in the state.  For example, this DPIC list of death row exonerations indicates that eight of the nine exonerations in Arizona occurred by 2003.  If "getting it wrong once" is, as Goddard says now, "one time too many" and "reason alone to abandon the death penalty," why didn't Goddard while serving as AG become a vocal opponent of capital punishment?

Similarly, I believe the breadth of the Arizona statute allowing capital punishment for nearly all first-degree murders is not a new reality.  If that reality makes the statute unconstitutional in the view of Goddard, why did he work vigorously to uphold death sentences under that statute for eight years?  In his role as AG, Goddard swore an oath to uphold the US Constitution, and he should have felt duty-bound not to seek to preserve capital convictions secured via an unconstitutional statute.  But, it would seem, Goddard was very slow to achieve this critical constitutional wisdom.

Likewise, I would guess that "unsettling racial disparities" in the  application of Arizona's death penalty did not only recently become evident.  (Linked here, for example, is a 1997 article with data on this kind of disparity and discrimination in Arizona.)   Did Goddard even care about the data on disparities when serving in the AG role for eight years?   If he really believes "any other state policy with that sort of disparity would be quickly repudiated," I would like to ask him why he did not quickly repudiate the death penalty over the eighth years he was in an ideal official position to do something about this state policy. 

I make these points not only to suggest that there is a notable johnny-come-lately quality to Goddard's capital criticisms, but also to wonder if Goddard might someday write another commentary that explains why a person in the role of Attorney General cannot or will not face up to problems in a state's criminal laws until long after completing service.  I have always wondered whether it is just political and institutional pressures that prompt government officials to defend questionable criminal laws and practices, or whether other sets of personal and professional factors are the heart of this story.  Some first-person accounting of just how and why Goddard has now come to a different view of these issues a number of years after his extended tenure as state AG could actually make his commentary much more valuable than the standard abolitionist review of reasons to oppose the death penalty.

November 12, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Retiring House Judiciary Chair Goodlatte mentions "enacting criminal justice reform" as an out-the-door priority

As explained here via an official missive, Congressman Bob Goodlatte released a letter this week to announce that he will not seek re-election in 2018. These parts of the letter, with my emphasis added, account for why this news strikes me as blogworthy:

For the past 25 years, it has been my honor to represent the Sixth Congressional District of Virginia.  I cannot begin to express how blessed I am to have had the opportunity to serve and take part in the great experiment of self-government envisioned by our Founders.  It has been a labor of love to work countless hours and travel endless miles on the roads of our District for a quarter of a century....

After much contemplation and prayer, we decided it was the right time for me to step aside and let someone else serve the Sixth District.  I will not seek re-election.  With my time as Chairman of the Judiciary Committee ending in December 2018, this is a natural stepping-off point and an opportunity to begin a new chapter of my career and spend more time with my family, particularly my granddaughters.

While I’m not running for re-election, my work in the 115th Congress is far from done.  There is much that I hope we can accomplish in the next year, including: bolstering enforcement of our immigration laws and reforming the legal immigration system, simplifying the tax code in order to stimulate job growth and benefit families in the Sixth District, enacting criminal justice reform, repealing Obamacare, advancing protections of the freedoms and liberties enshrined in our Constitution, and, of course, continuing first-class constituent service for the citizens of the Sixth District....

As House Judiciary Chair, Goodlatte plays a very important role in determining if and how proposals for federal statutory sentencing reform can move forward. I have generally heard that he is a tepid supporter of reform: I sense he would not champion any reforms, but also would not seek to kill any bill that has broad support on this side of the aisle.  Now, with only a dozen or so months in this role and in Congress, it seems possible that Goodlatte might be a little more motivate to make the enactment of some significant federal criminal justice reform part of his legacy.  Or maybe not ... as I always struggle to understand the mysterious ways and people that lurk inside the Beltway

November 12, 2017 in Who Sentences? | Permalink | Comments (1)

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

Saturday, November 11, 2017

"Roughly one in 12 people in America’s prisons and jails is a veteran"

Veterans-day-thank-you-quotesThe title of this post is one of a number of notable facts reviewed in this new webpage up at Families Against Mandatory Minimums. The page carries the simple heading "Veterans Day," and here are excerpts:

Kenny. Ronald. Warren. Michael. All of these men served in our country’s Armed Forces.  Between them, their service extended to all branches of the military and earned them several Purple Hearts and other distinctions. They served bravely and with courage, and we honor them and all veterans today.

Ronald, Michael, Warren, and Kenny are also prisoners and former prisoners.  Roughly one in 12 people in America’s prisons and jails is a veteran.  Often, they’ve ended up in prison because of behavior resulting from injuries and trauma sustained during service.  Many are serving absurdly long sentences for low-level drug offenses, having turned to drugs as a way of coping with PTSD and adjusting to life after tours of duty.  And almost always, they are forgotten on this solemn day.

Our message today is simple:

  • Judges need discretion at sentencing to consider the reasons our country’s veterans ended up on the wrong side of the law.
  • The evidence of America’s failed war on drugs is in heartbreaking relief when you consider the lives of veterans— who put their lives on the line for our country — now serving inhumane mandatory minimum sentences.
  • The service to our country of incarcerated veterans is no less appreciated because of your incarceration. You are not forgotten. Thank you for your service.

Some sobering facts to think about today:

  • More than 75 percent of incarcerated veterans received honorable discharges from the military.
  • An estimated two thirds of those serving prison sentences discharged from service between 1974 and 2000, a period spanning several wars including Vietnam, the Gulf War, Iraq, and Afghanistan.
  • Of the total number of persons incarcerated, about half were diagnosed with a mental disorder, frequently Post Traumatic Stress Disorder (PTSD).
  • Sixty-four percent of incarcerated veterans have been sentenced for violent offenses, as opposed to only 48 percent of other prisoners. (That single fact has resulted in both longer and harsher sentences for veterans.)

Some good news:

  • Overall, the veteran prison population has shrunk.
  • As both the Veterans Administration and the courts have begun to understand this particular issue, the situation for veterans has improved. The veteran prison population has dropped as the Veterans Administration works to provide outreach and support to returning vets, including the provision of Veterans Justice Outreach Specialist.
  • Probation officers and corrections staff are being trained to immediately identify veterans upon sentencing, and then to connect the veteran with a Veterans Justice Outreach Specialist who can advise and support the veteran.

November 11, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5)

Friday, November 10, 2017

"Is It Time for Criminologists to Step Outside the Ivory Tower?"

The question in the title of this post is the headline of this commentary by LawProf Erik Luna from over at the Crime Report that provides some background and perspective on the extraordinary recent academic work, discussed here, that Erik helped create and curate. Here are excerpts:

[C]riminal justice reform presents an issue — perhaps the only issue today — on which the left and the right can unite. And, as it turns out, the academic world may be able to help, as demonstrated by a newly released report from a distinguished group of criminal justice scholars....

Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. On what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and the Charles Koch Institute?

In our nation’s capital, Republicans and Democrats came together to correct grotesque disparities between crack and powder cocaine sentencing, for instance, and pending bills would address such issues as America’s broken bail process, ruthless mandatory penalties, and recidivism by former inmates. In truth, the most remarkable bipartisan action is occurring outside of the Beltway, where states such as Texas (yes, Texas) are leading the way in top-to-bottom criminal justice reforms.

Although advocates may have different motivations — political, social, economic, religious — they agree that something needs to be done about criminal justice in America....

Despite [broad] reasons to support criminal justice reform, the movement still faces a daunting task. In particular, a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the reality of pretrial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration.

This lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice. What is needed is a means to help people grasp the system’s workings and its many, interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions.

This is where academics have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system and proposing changes to that system.

Traditionally, however, academic authors have written to themselves—that is, to other criminal justice scholars — not to the public or even to policymakers, professionals, or policy analysts interested in criminal justice.  As a result, academic scholarship is inaccessible in the sense that it is dense, filled with jargon, and, as a general rule, painful to read and unfriendly to normal human beings.  Oftentimes scholarly works are physically inaccessible as well, published by academic presses and journals and buried in libraries or hidden behind paywalls.

In an attempt to bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of well over 100 scholars has issued a four-volume report titled Reforming Criminal Justice, which takes on some of the most pressing issues in criminal justice today.

Broken down into individual chapters, each authored by a top scholar in the relevant field, the report covers dozens of topics within the areas of criminalization, policing, pretrial and trial processes, sentencing, incarceration, and release. The goal of each chapter is to increase both professional and public understanding of the subject matter, to facilitate an appreciation of the relevant scholarly literature and the need for reform, and to offer potential solutions.

Today, the United States is unique among Western nations in terms of the scale and punitiveness of its criminal justice system. Academics can’t directly change this: We’re teachers and scholars, not elected officials or other policymakers. But, as the report hopes to show, the academic world can enlighten the public and their representatives and help guide reform efforts through the insights of those whose lifework is the study of criminal justice.

Prior related post:

November 10, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (3)

Nebraska moving forward with execution plans involving a new four-drug(?!) lethal injection protocol

The state of Nebraska has not had an execution in two decades, and the state's legislature actually abolished the death penalty back in 2015.  But voters in 2016 brought the death penalty back, and this local article reports on recent work by the state's Attorney General to carry out the will of the people.  And the article, headlined "State of Nebraska moves closer to executing Jose Sandoval by lethal injection, but legal challenges appear likely," explains why the novel execution method adopted in the state seems sure to engender litigation:

The State of Nebraska took a big step Thursday toward executing its first death-row inmate in 20 years, using an untried combination of lethal-injection drugs.

Attorney General Doug Peterson said Thursday that he is prepared to request a death warrant for Jose Sandoval after at least 60 days, which is the minimum notice period for condemned inmates under the state’s execution protocol. The Nebraska Supreme Court issues death warrants if an inmate has no pending appeals. A check of state and federal court records Thursday showed that Sandoval’s last legal challenge was decided against him in 2011 and that he has no active appeals. It’s unclear whether he currently has a lawyer or will contest the state’s plan to execute him.

But experts say the new four-drug combination officials unveiled Thursday has never been used by another state in a lethal injection execution. Legal challenges over the drugs could further delay what would be the first time Nebraska has used lethal injection to carry out an execution. Twenty years ago, the state relied solely on the electric chair. “It’s yet another experimental protocol. Now the lawsuits begin,” said Robert Dunham, director of the Death Penalty Information Center in Washington, D.C.

The Nebraska Department of Correctional Services notified Sandoval that it will inject four drugs in the following order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride. Diazepam (brand names include Valium) is a benzodiazepine that is used to produce a calming effect. Fentanyl citrate is a general anesthetic that has been used since the 1960s. As an opioid, it also blocks pain, which has made it a popular a street drug linked to lethal overdoses.

Cisatracurium besylate (brand name: Nimbex) relaxes or paralyzes muscles and is used along with a general anesthetic when intubating patients or doing surgery. The final drug, potassium chloride, is used to stop the inmate’s heart. It was the only drug that was also used in Nebraska’s former three-drug combination.

Dunham said the four drugs selected by Nebraska have not been used in combination by another death penalty state. The third drug, cisatracurium besylate, has not been used before in an execution, he added.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, California, said that in 2015 the U.S. Supreme Court established “a fairly high hurdle for those who would stop a lethal injection.” In deciding a lethal injection dispute in Oklahoma, the court said that to prevent an execution, the drug must present a “demonstrated risk of causing severe pain” in the inmate and the risk must be substantial compared with known alternative drugs, Scheidegger said. “The objection that a drug has never been used before is not valid by itself,” he said.

The announcement that Sandoval had been selected for execution was somewhat surprising, given that several other inmates have been on death row longer than he has. Sandoval was the ringleader of a 2002 botched bank robbery that left five people shot to death. He was later convicted of killing two men before the bank shootings. Vivian Tuttle, whose daughter, Evonne, was gunned down by Sandoval as she stood in line to cash a check, said she had been waiting for this day. “He needs to be executed, and Nebraska has the drugs to do it now,” Tuttle said Thursday....

State Sen. Ernie Chambers of Omaha, the leading opponent of capital punishment in the state, said the new and untested protocol would inspire lengthy legal action. “They’re far from being at the point at which an execution can be carried out,” Chambers said. “I think the rough ride has just begun.”

The senator said he thought that Thursday’s announcement was more a “political and public relations” move tied to Gov. Pete Ricketts’ bid to win a second term as governor. The Republican governor helped organize and fund a petition drive to reinstate capital punishment last year after the Legislature in 2015 overrode his veto to repeal the death penalty.

Danielle Conrad, director of the ACLU of Nebraska, said she was “horrified” that the state plans to use Sandoval as a test subject for an unproven lethal drug combination. Her organization, she said, will closely evaluate the constitutional questions raised by the state’s plan. “This rash decision will not fix the problems with Nebraska’s broken death penalty and are a distraction from the real issues impacting Nebraska’s Department of Corrections: an overcrowded, crisis-riddled system,” she said in a press release....

Sandoval was considered the leader of four men who attempted to rob the Norfolk bank. He shot and killed three of the victims. He is one of 11 men on death row, which is at the Tecumseh State Prison.

November 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

Thursday, November 9, 2017

Making the case against International Megan's Law

Guy Hamilton-Smith has this new commentary at In Justice Today headlined "We’re Putting Sex Offender Stamps on Passports. Here’s Why It Won’t Curb Sex Tourism & Trafficking." Here are excerpts:

On October 30th, the State Department announced that passports of people who are required to register as sex offenders because of an offense involving a minor will be marked with a “unique identifier” that will read: "The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l)."

The law which occasions this requirement, International Megan’s Law (IML), was enacted in 2016 under President Obama.  In addition to the identifier requirement, IML allows for existing passports of those on the registry to be revoked, and imposes criminal penalties on them for failure to provide the government with advance notice of international travel plans.  While U.S. law already provided for destination countries to be put on notice regarding the travel plans of those on the sex offender registry, IML ratchets things up by requiring the person to carry the government’s “identifier” with them wherever they go abroad....

While IML and similar laws are packaged as a way to prevent sexual violence and exploitation, they do little to nothing to meet those objectives because they make assumptions about sexual offending that are incorrect.  For instance, people who have been convicted of sexual offenses generally have one of the lowest rates of re-offense out of any class of criminal. Dozens of studies have consistently confirmed this finding, including research from the U.S. Department of Justice.  Along similar lines, a 2008 time-series analysis of 170,000 unique sex offenses found that 95.9% of the time, the perpetrator was a first-time offender.  In other words, nearly all reported sexual offending is being perpetrated by people who are not on a registry.

In light of the evidence, the argument that IML and other sex offense policies misdirect resources and attention from actual causes and obfuscate actual solutions is compelling.  Experts such as John Hopkins professor and Director of the Moore Center for the Prevention of Child Sexual Abuse Elizabeth Letourneau have argued that, instead of focusing our attention and resources on sex offenders and criminal justice, we ought to focus on education and prevention efforts....

This conclusion is impelled with equal force in the context of international travel.  The U.S. Government Accountability Office and State Department quietly admitted that there is no mass exodus of people on the registry traveling to sex tourism destinations to engage in rape and child molestation: they identified three cases over a five-year period where a person on the registry was convicted for a sexual offense overseas.  To put that number in perspective, there are presently more than 800,000 people on a sex offender registry in the United States in 2017.

IML is more than simply ineffective at accomplishing what its authors have intended.  As commentators have observed, the marking of “a basic badge of citizenship” with a proverbial Scarlet Letter is nearly unprecedented in history.  The freedom of movement, including the right to leave one’s own country, is a basic and fundamental human right outlined in Article 13 of the Universal Declaration of Human Rights.  Historically, the state marking the travel and civil documents of despised groups was only a prologue to further encroachments on fundamental rights.

As recent years have demonstrated, sex offenders have become a proving ground for law and policy that the public would (and should) otherwise find abhorrent.  IML, and its attendant marking of the sine qua non of international travel documents, is just the latest high-profile example.  By misdirecting attention and resources away from actual causes and solutions, policies like IML obfuscate real solutions to the problems presented by sex tourism, trafficking, violence, and exploitation, and reinforce a narrative that is wholly divorced from facts.  Because of this, policies like IML will only ultimately serve to perpetuate the very harms that they seek to prevent.

November 9, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (14)

Florida and Texas carry out executions on same night

As reported in these two articles, two states carried out two death sentences via lethal injection yesterday:

I believe this is the first time since January 2015 in which two different states carried out executions on the same day. (Arkansas back in April carried out two executions in one state in one day.)

This development is not quite conclusive proof that machineries of death are humming along again, but it serves as still more evidence to support my belief that the results of the 2016 election cycle — especially the vote in support of improving the operation of the death penalty in California and the election of Donald Trump as President — may have significantly turned around the declining fortunes of the death penalty in the US.  I doubt we will get back to 1990s levels of death sentences and executions in the US absent a huge spike in homicides.  But there are still over 2800 condemned persons on death rows throughout the US, and it seems quite possible we could before long start seeing 50 or more executions per year again (which was, roughly speaking, the average during the administrations of Bill Clinton and Geotge W. Bush).

November 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

"The Unsung Role That Ordinary Citizens Played in the Great Crime Decline"

The title of this post is the headline of this notable new New York Times piece, which gets started and ends  this way (with inks from the original):

Most theories for the great crime decline that swept across nearly every major American city over the last 25 years have focused on the would-be criminals.

Their lives changed in many ways starting in the 1990s: Strict new policing tactics kept closer watch on them. Mass incarceration locked them up in growing numbers. The crack epidemic that ensnared many began to recede. Even the more unorthodox theories — around the rise of abortion, the reduction in lead or the spread of A.D.H.D. medication — have argued that larger shifts in society altered the behavior (and existence) of potential criminals.

But none of these explanations have paid much attention to the communities where violence plummeted the most. New research suggests that people there were working hard, with little credit, to address the problem themselves.

Local nonprofit groups that responded to the violence by cleaning streets, building playgrounds, mentoring children and employing young men had a real effect on the crime rate. That’s what Patrick Sharkey, a sociologist at New York University, argues in a new study and a forthcoming book. Mr. Sharkey doesn’t contend that community groups alone drove the national decline in crime, but rather that their impact is a major missing piece.  “This was a part that has been completely overlooked and ignored in national debates over the crime drop,” he said. “But I think it’s fundamental to what happened.”...

As Mr. Sharkey publishes his findings, crime rates are now diverging after a generation in which violence fell reliably year after year nearly everywhere. It’s not clear yet whether the great crime decline he writes about will continue. But he argues that it’s time for a new model of violence prevention, one that relies more heavily on the kind of work that these community groups have been quietly doing than on the aggressive police tactics and tough sentencing that the Trump administration now advocates.

“The model that we’ve relied on to control violence for a long time has broken down,” Mr. Sharkey said. If communities want police to step back, he is pointing to some of the people who can step in. “This gives us a model. It gives us another set of actors who can play a larger role.”

November 9, 2017 in National and State Crime Data, Who Sentences? | Permalink | Comments (1)

Wednesday, November 8, 2017

House members reintroduce the Safe, Accountable, Fair, and Effective (SAFE) Justice Act

As reported in this press release, yesterday "Representatives Bobby Scott (D-VA) and Jason Lewis (R-MN) introduced bipartisan legislation aimed at safely reining in the size and associated costs of the federal criminal code and prison system."  Here is more from the press release about the reintroduction of one of the most progressive federal statutory sentencing reform proposals to make the rounds recently:

H.R. 4261, the Safe, Accountable, Fair, and Effective (SAFE) Justice Act takes a broad-based approach to improving the federal sentencing and corrections system, spanning from sentencing reform to release policies.  The legislation, which is inspired by the successes of states across the country, will break the cycle of recidivism, concentrate prison space on violent and career criminals, increase the use of evidence-based alternatives to incarceration, curtail over-criminalization, reduce crime, and save money....

Similar to the successful reform packages enacted in many states, the SAFE Justice Act aligns the federal prison system with the science about what works to reform criminal behavior.  It reflects the growing consensus among researchers that, for many offenders, adding more months and years onto long prison terms is a high-cost, low-return approach to public safety.  It also looks to the growing number of practices in correctional supervision that are shown to reduce recidivism. 

The SAFE Justice Act will:

  • Reduce recidivism by –
    • incentivizing completion of evidence-based prison programming and activities through expanded earned time credits;
    • implementing swift, certain, and proportionate sanctions for violations of supervision; and
    • offering credits for compliance with the conditions of supervision.
  • Concentrate prison space on violent and career criminals by  –
    • focusing mandatory minimum sentences on leaders and supervisors of drug trafficking organizations;
    • safely expanding the drug trafficking safety valve (an exception to mandatory minimums) for qualified offenders; and
    • creating release valves for lower-risk geriatric and terminally-ill offenders.
  • Increase use of evidence-based sentencing alternatives by  –
    • encouraging greater use of probation and problem-solving courts for appropriate offenders; and
    • creating a performance-incentive funding program to better align the interests of the Bureau of Prisons and U.S. Probation Offices. 
  • Curtail overcriminalization by –
    • requiring regulatory criminal offenses to be compiled and published for the public;
    • ensuring fiscal impact statements are attached to all future sentencing and corrections proposals; and
    • charging the Department of Justice, the Bureau of Prisons, and the Administrative Office of the Courts with collecting key outcome performance measures.
  • Reduce crime by –
    • investing in evidence-based crime prevention initiatives; and
    • increasing funding for community based policing and public safety initiatives.

Original cosponsors of the SAFE Justice Act: Reps. John Conyers, Jr. (D-MI), Mia Love (R-UT), Sheila Jackson Lee (D-TX), Carlos Curbelo (R-FL), Eleanor Holmes Norton (D-DC), Brian Fitzpatrick (R-PA).

Additional information about the SAFE Justice Act:

Prior related post from June 2015:

November 8, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Another notable set of Election Day results for the criminal justice reform movement

One could readily spin the 2016 election as a good one for the (non-capital) sentencing reform movement: marijuana reform and sentencing reform initiatives won in a wide array of blue and red states, and the presidential candidate more supportive of federal reforms won the nationwide popular vote by a fairly sizable margin.  But, on the other side of the spin cycle, the death penalty won big ballot initiative victories in a three states (including California), and Donald Trump won all the right votes in all the right places to become Prez and bring his tough-and-tougher attitudes about crime and punishment into power in the federal executive branch.

I remind everyone of these mixed-message stories from the major election of 2016 because it seems there are not mixed messages or competing spins likely to emerge from the off-off-year election results in 2017.  In two gubernatorial races in New Jersey and Virginia, the candidate more supportive of some form of criminal justice reform prevailed.  As noted in this prior post, Prez Trump used his Twitter thumbs to make crime a central issue in the Virginia race, but his preferred candidate seems to have badly under-performed his poll numbers.  And in a widely-discussed local DA race, long-time defense attorney Larry Krasner won big in Philadelphia and now seems poised to engineer a whole new approach to the prosecutorial function in one of the largest cities in the US.

For an array of reasons, these results do not ensure that an array of sentencing reform movements at the federal, state and local levels are sure to be ever more successful and productive in the months and years ahead.  But they serve as a clear signal at this moment in time that advocating criminal justice reform in the right ways and in the right places can be part of winning political strategy (at least on the east coast).   The importance of that signal cannot be overstated.

November 8, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, November 7, 2017

Interesting account of "Five myths about white collar crime"

I just saw this notable recent commentary authored by Nicolas Bourtin, a former federal prosecutor, published in the Washington Post outlook section. Here is how the lengthy commentary starts along with the myth headings and the section most focused on sentencing:

Bankers and government officials continue to feature prominently on our newspapers’ front pages — and not in a good way. Since the financial crisis of 2008, a string of political and corporate scandals has played out in our political and financial centers, and recent investigations of people close to President Trump, including Paul Manafort and Rick Gates, have produced indictments for money laundering and tax fraud. Corporate malfeasance, corruption and tax fraud are shrouded in misconceptions. Here are five enduring myths about white-collar crime.

MYTH NO. 1: Prosecutors fear prosecuting powerful defendants....

MYTH NO. 2 White-collar defendants never serve real time.

In the wake of the financial crisis, publications such as Fortune and the Nation have sought to answer why its architects don’t do hard time for their crimes. “Why does the Justice Department appear to have given up on putting white-collar criminals in jail?” Fortune asked. When academics began studying the subject in the 1970s, they noted that federal judges were typically lenient toward white-collar offenders.

Those days are over. Judicial discretion in sentencing was greatly limited by the adoption of the Federal Sentencing Guidelines in 1987, whose penalties for fraud were further enhanced after the Enron scandal broke in 2001. And although the Supreme Court held in 2005 that the guidelines were advisory and no longer mandatory for judges, sentences for white-collar defendants have been getting harsher, not more lenient.

According to the U.S. Sentencing Commission’s 2013 Report on Sentencing Trends, nearly 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012. In 1985, by comparison, the average sentence for white-collar crimes was just 29 months.

MYTH NO. 3 Trump’s administration won’t enforce anti-corruption laws....

MYTH NO. 4 No one went to prison as a result of the financial crisis....

MYTH NO. 5 Financial crime is the same as robbery or theft....

November 7, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Prez Trump promises "crime will be gone" if Virginians elect the right governor

The politics of crime and punishment are always notable, and the President of the United States today through Twitter added to this always dynamic tale.  Specifically, in this 2017 Election Day tweet, Prez Trump makes a bold claim (with my emphasis added) about the impact of the GOP candidate for Gov in Virginia: "EdWGillespie will totally turn around the high crime and poor economic performance of VA. MS-13 and crime will be gone."  Wow, that is quite a promise, and one I do not recall Prez Trump even making for his own tenure in office.

This new Washington Post article, headlined "Trump plays ‘crime’ card for Virginia GOP as bitter race for governor highlights political rifts," provides more of the context and contents of the President's tweets in this arena. Here is how the article starts:

President Trump weighed in on Virginia’s hotly contested race for governor Tuesday, underscoring the importance of an election seen as a test of his popularity and its possible impact on state-level politics around the country.

Trump urged voters to support Republican Ed Gillespie over Democrat Ralph Northam, the state’s sitting lieutenant governor. Gillespie, a longtime establishment Republican, has embraced the culturally divisive aspects of Trump’s agenda, while Northam has presented himself as a bulwark against Trump.

“Ralph Northam will allow crime to be rampant in Virginia,” Trump wrote on Twitter, echoing Gillespie ads tying Northam to violence committed by the gang MS-13. If the Republican wins, Trump said, “MS-13 and crime will be gone.”

Polls show Gillespie and Northam are running neck and neck. They are competing to replace Gov. Terry McAuliffe (D), who is prevented by state law from seeking a second consecutive term.

November 7, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, November 6, 2017

A number of executions in a number of states generating a number of notable stories and commentary

As detailed in this DPIC listing of upcoming executions, there are scheduled five executions in five different states over the next 10 days.  As is always the reality, each of these cases involve notable stories that can generate notable news.  Here are a few recent stories and commentaries about some of the cases in some of these states (in the order of planned executions):

In the case from Texas: "Mexico says upcoming U.S. execution of national is 'illegal'"

In the case from Arkansas: "Arkansas Death Row Inmate Wants Brain Examined If Executed"

In the case from Nevada: "Against a 'Cruel and Unusual' Death: Nevada must not allow a death-row inmate to 'volunteer' for execution by fentanyl and other drugs."

In the case from Ohio: "Ohio death row inmate wants firing squad as execution alternative"

November 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

NAAUSA and six other law enforcement groups write to Sentencing Reform and Corrections Act, per the attached letter.

Last week I blogged here about a letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws.  Today I received a copy of a quite different letter also sent to the leaders of the Senate Judiciary Committee this time coming from the National Association of Assistant U.S. Attorneys and six other law enforcement groups.  Here is how the letter, which can be downloaded below, gets started:

We write to express the opposition of the undersigned organizations to the recently-introduced Sentencing Reform and Corrections Act of 2017 (S. 1917).  We represent federal, state and local law enforcement officers, agents and prosecutors responsible for the investigation and prosecution of drug traffickers and other violent offenders involved in the distribution and sale of dangerous drugs.

The public safety of our communities across the nation would be negatively impacted by this legislation.  The legislation undermines mandatory minimum penalties for drug trafficking and weakens the tools that law enforcement authorities need to enforce the law, prosecute criminals and dismantle domestic and international drug trafficking organizations.  The legislation authorizes the early release of thousands of previously convicted armed career criminals, serial violent criminals, and repeat drug traffickers. And it will make it more difficult for law enforcement to pursue the most culpable drug dealers and secure their cooperation to pursue others in drug distribution rings and networks, domestic and international.

The bill would undermine law enforcement investigatory efforts by giving serious criminals the best of both worlds: less sentencing exposure and the choice to not cooperate with law enforcement in further investigatory efforts.

This is not the time for the Congress to consider changes like these that will impair the ability of law enforcement to take serious drug traffickers off the street.  Violent crime across America continues to grow, and a raging heroin and opioid abuse epidemic shows no sign of ebbing. For the second year in a row, violent crime increased across the United States, according to FBI annual crime data.  Homicides increased by 8.6%, with cities like Baltimore, Chicago, and Kansas City, Missouri witnessing massive increases in their homicide rates.  Meanwhile, a national epidemic of overdose deaths, caused largely by heroin and opioid drug abuse, ravages the country.  No state is immune from the deadly consequences.  Over 47,000 Americans died from drug overdoses in 2014, an all-time high. In 2015 that number rose to 50,000; last year it continued to skyrocket to 64,000 people.  Daily drug overdose deaths, including those from heroin use, exceed those caused by auto accidents.

Download LE Groups Ltr re S 1917 Nov02-2017

November 6, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Two notable summary reversals from SCOTUS after circuits failed, yet again, to properly follow AEDPA

The US Supreme Court this morning released this order list which does not grant cert in any new cases but does concludes with two notable summary reversals both of which result from circuit courts failing to follow properly the commands of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The longer per curiam ruling (without dissent) comes in Kernan v. Cuero, No. 16-1468 (S. Ct. Nov 6, 2017) (available here), which gets started this way:

The Antiterrorism and Effective Death Penalty Act of1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to,or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, MichaelCuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

The question here is whether the state-court decision “involved an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States.” Ibid. Did our prior decisions (1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea? Because no decision from this Court clearly establishes that a state court must choose the first alternative, we reverse the Ninth Circuit’s decision.

The other per curiam ruling comes in Dunn v. Madison, No. 17-193 (S. Ct. Nov 6, 2017) (available here), includes these passages:

Neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed.

Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error“beyond any possibility for fairminded disagreement.” Richter, supra, at 103.  Under that deferential standard, Madison’s claim to federal habeas relief must fail. We express no view on the merits of the underlying question outside of the AEDPA context.

Notably, Justice Ginsburg penned this brief concurrence in Dunn that was joined by Justices Breyer and Sotomayor:

The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the Court’s per curiam disposition of this case.

And Justice Breyer also added a concurrence in Dunn to note that the "case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution." Notably, no other Justice joined this concurrence by Justice Breyer.

November 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Sunday, November 5, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

Andrew McCarthy has this notable recent National Review commentary under this amusing headline/subheadline: "Your Sentencing Advice Isn’t Helpful; Bergdahl is to loyalty as Trump is to tact."  Though the headline suggests the piece is mostly about taking Prez Trump to task, it actually focuses effectively on just how the battle facing federal prosecutors in the Saipov case was made a bit harder by the Prez.  Here is part of McCarthy's analysis:

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

In the end, I’m pretty sure defense motions to throw out any capital charges will be denied.  But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher. Make no mistake: They already have an uphill battle on their hands. 

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.)  But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment.  If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple. 

The SDNY prosecutors are a clever lot.  In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings.  The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B).  They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS).  Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.  The government has a good argument.  Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.

All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear.  I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts.  When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.  But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues).  The prosecutors’ margin for error, already thin in a death case, will narrow all the more.  Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

Prior related posts:

November 5, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Ohio legislator claims condemned inmates "don’t like" her bill to abolish death penalty

It was the headline of this local article, "Republicans join effort to abolish death penalty in Ohio," that first caught my attention. But a quote and claim within prompted the title of this post, and here are excerpts:

With another execution looming next week in Ohio, a Democratic lawmaker is pushing a bill that would eliminate the death penalty in the Buckeye State. Although similar tries in three previous legislative sessions have gone nowhere, this time some Republicans are on board.

House Bill 389, sponsored by Rep. Nickie Antonio, D-Lakewood, would replace capital punishment with a life sentence without parole. “The consideration of death by the state would be off the table. ... This doesn’t mean they aren’t prosecuted to the fullest extent by the law,” Antonio said....

Antonio’s bill has bipartisan support. Reps. Niraj Antani, R-Miamisburg, and Craig Riedel, R-Defiance, are co-sponsors. “It’s a life issue,” Antani said. He says the ability to put someone to death is “way too big of a power” for the government.

As a Roman Catholic, Riedel opposes capital punishment. “It’s my faith that has led me to believe to not support the death penalty,” Riedel said. “Mankind is not in charge of natural death.”

This is not the first legislative effort that has tried to put an end to capital punishment in Ohio. In fact, this is the fourth time Antonio has introduced the same bill to the General Assembly. “We are not saying do not punish the criminal,” Antonio said. “Punish the criminal through a sentence of life without parole.”...

“I’ve visited death row inmates and they don’t like my bill,” Antonio said. She said they view the death penalty as a way to put them out of their misery....

Almost 140 prisoners were on death row in Ohio as of Oct. 2, according to the Ohio Department of Rehabilitation and Correction....

Despite the shift in public attitudes, the Ohio Prosecuting Attorneys Association continues to support capital punishment.... The association has maintained opposition to the repeal of the death penalty, said Wood County Prosecutor Paul Dobson, president of the group. “We believe it’s a deterrent factor of the most serious crimes,” Dobson said.

Notably, this DPIC webpage accounting of "volunteers" lists 7 Ohio executed killers "who continued to waive at least part of their ordinary appeals at the time of their execution."  This accounting suggests that more than 10% of Ohio's 55 executed killers would not have been supportive of the abolition of the death penalty, but it suggests that more than 85% of those executed would have liked to have seen the death penalty abolished.   Because Ohio has 143 current killers on death row, assuming the same based breakdown suggests that maybe as many as 18 condemned Ohio killers do not like the idea of capital abolition.  But I suspect well over 100 of the Ohio condemned would vote in favor of Rep. Nickie Antonio's bill.

November 5, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

In praise of an extraordinary new resource, "Reforming Criminal Justice" 

This press release reports on the recent culmination of an extraordinary academic project:

In an effort to inform criminal justice reform, the Sandra Day O’Connor College of Law at Arizona State University published a major new report titled Reforming Criminal Justice. The culmination of a yearlong collaboration, the four-volume publication involved 120 of the nation’s foremost academics to discuss specific topics within the reform movement. The report was made possible with support from the Charles Koch Foundation....

Erik Luna, ASU Law Amelia D. Lewis professor of constitutional and criminal law, directs the project. “The goal of this report is to connect academics with those responsible for criminal justice policy,” said Luna. “In recent years, academics have not effectively participated in and contributed to the conversation. This is a way for them not only to be a part of the discussion, but also to impact real-world policy.”

The coalition of scholars, known as the Academy for Justice, was inspired by a bipartisan summit in 2015, which brought together prominent figures in the reform movement to discuss the problems of criminal justice and to propose real, meaningful, lasting solutions. Following the 2015 summit, Professor Luna spearheaded an effort to integrate the expertise of the nation’s leading academics into the criminal justice reform movement.  That effort ultimately led to the idea of creating an unprecedented report with perspectives from criminal justice experts from colleges and universities such as Berkeley, Chicago, Columbia, Georgetown, Harvard, NYU, Penn, Stanford, Vanderbilt, and Virginia.  The scholars gathered at ASU Law’s Beus Center for Law and Society in February 2017, to share ideas, review and provide feedback on each other’s work, and ensure the highest quality content and issue development....

The report provides both detailed analysis and specific policy proposals, a resource of unrivaled breadth and depth in the reform movement.  The 57 separate contributions cover a wide range of specific topics within criminal justice: from criminalization and policing to adjudication and incarceration.  To maintain and increase its momentum, policymakers, thought leaders, and community members must encourage a broader and deeper understanding of the problems and forge thoughtful solutions to these difficult issues. This is where academics have an important role to play.

The report is being distributed to policymakers, criminal justice officials, think tanks, non-profit organizations, and community activists, but will also be freely available to the public through a dedicated website, academyforjustice.org

I had the honor and privilege of contributing a chapter to this extraordinary project, which is available here and is titled simply "Sentencing Guidelines."  Sentencing fans will especially want to check out all of Volume 4  on "Punishment, Incarceration, and Release" for chapters on topics ranging from traditional theories of punishment to risk assessment at sentencing to fines and fees to sex offender registration and many more. Indeed, all criminal justice fans should check out all the volumes because there is so much extraordinary work to be found therein.

November 5, 2017 in Recommended reading | Permalink | Comments (1)

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

Facebook-seoMy local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?

November 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, November 4, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

"Can Jared Kushner Save Criminal Justice Reform?"

The question in the title of this post is the headline of this recent Marshall Project article about a figure who has long been seen as an important figure in the fate of federal criminal justice reform in the Trump Era.  Here are some excerpts:

In July, [Pat] Nolan, now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a leading figure in a conservative reform effort that goes under the rubric Right on Crime, picked up the newspaper and saw that Jared Kushner was well-placed to advance the cause. Nolan reconnected and began sending Kushner memos on how private businesses and church groups could be mobilized to become mentors for released prisoners. Kushner almost always responded within hours.

Nolan’s faith has been bolstered by a flurry of meetings, summits and dinners that Kushner has held in recent weeks with lawmakers and criminal justice reform advocates, leading the more optimistic activists to believe the tough-on-criminals posture of President Donald Trump and Attorney General Jeff Sessions may not mean a complete freeze on federal reforms.

Many wonder whether Kushner has the clout and skill to maneuver any reform to enactment. No new initiatives or official messages of support for reform legislation have come from a White House that has ratcheted up enforcement of drug and immigration offenses. But given a window into the 36-year-old’s dealing with bipartisan groups seeking reforms, Nolan thinks Kushner, driven by his own personal frustrations with the criminal justice system, stands a chance of success. “He cares passionately about this,” Nolan said....

In September, Nolan was among faith leaders invited by Kushner to discuss ideas for a national mentoring program to help released prisoners resettle in their communities -- a measure that would require minimal federal effort. Later that afternoon, Kushner convened a roundtable of politicians, criminal justice reform groups, religious leaders, employers and others in the Indian Treaty Room in the East Wing of the Eisenhower Executive Building. The conference was called the “Prisoner Reentry Summit” and participants had been sent questions in advance to prepare.

“Please let us know if there are ways in which the President can amplify already successful programs, Federal and private sector/nonprofit, or assist in making a program more effective,” the questionnaire said. “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”In a navy blue suit, Kushner sat in the middle of a long conference table flanked to his left and right by Nolan and Kentucky Gov. Matt Bevin. Others at the meeting included U.S. senators Sheldon Whitehouse of Rhode Island and John Cornyn of Texas, U.S. representatives Chris Collins of New York and Sheila Jackson Lee of Texas, Gov. Sam Brownback of Kansas, Secretary of Housing and Urban Development Ben Carson and Secretary of Labor Alexander Acosta.

Participants spoke for three to five minutes each on a range of challenges faced by released prisoners, including housing, education and employment while Kushner took notes, asked questions and identified next steps, Holden said. A Department of Justice official who attended signaled that the DOJ was interested in drug courts and programs that could help released prisoners transition back to communities, a surprise to those who feared that Attorney General Sessions’ agenda would only focus on enforcing laws and punishing criminals. “It wasn’t ‘lock em up and throw away the key,’” Holden said. (About a week after the summit, the Department of Justice announced that it was awarding more than $9.5 million to juvenile and family drug court programs across the country.)...

No new initiatives have been launched by the White House since the meeting but other positive signs for reform have followed. Early this month a bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley, Senate Democratic Whip Dick Durbin and several others reintroduced the Sentencing Reform and Corrections Act, a popular bipartisan bill that died last year when it was never put up for a vote. The bill would give judges more discretion at sentencing to skirt mandatory minimum sentence requirements for people with short criminal histories, and its revival was unexpected; Sessions had strongly opposed the bill last year when he was in the Senate.“Something happened,” said Inimai M. Chettiar, Justice Program director of the left-leaning Brennan Center for Justice. “We don’t know what happened. What I found interesting about the resurrection of this particular bill is that Sessions did a lot of work to kill this bill.”

Sources in the Senate say Kushner has pledged White House support for the bill. Does that mean he believes he has more sway with President Trump than Sessions does? Or has Sessions changed his mind or reached a compromise with Kushner and senators? Attempts to reach Kushner through the White House communications director were not successful. A DOJ spokesman declined an interview request for Sessions....

In talks with Nolan, Kushner has indicated that he believes Sessions is more of a proponent of second chance programs than many have been led to believe. Sessions’ Senate record includes sponsoring legislation that reduced the discrepancies for penalties for using crack versus cocaine and the Prison Rape Elimination Act. “He thinks that the press and the public have misinterpreted where Sessions is coming from,” Nolan said. “He thinks there is a lot more commitment from Sessions to working toward reforms. ”But even if Kushner can hurdle Sessions’ reservations, Whitehouse said, White House leadership will be needed to persuade House Speaker Paul Ryan to guide a bill through a House obstacle course, and convince Senate Majority Leader Mitch McConnell to give the bill floor time and line up votes. “There are ways to get there but it requires levers to be applied that the White House has and I do not,” Whitehouse said....

Of the conservatives who have Kushner’s ear, Whitehouse says, “To be blunt, I am skeptical of their motives.” But having participated in two meetings with Kushner on the subject, Whitehouse said he believes the president’s son-in-law is serious about improving the criminal justice system. “I’ve seen the way he talks about it,” Whitehouse said. “I haven’t the faintest idea of how he polls in the White House,” but “I know he’s sincere about this.”

November 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Friday, November 3, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

"Multiple Offenders and the Question of Desert"

The title of this post is the title of this new paper by Youngjae Lee now available via SSRN. Here is the abstract:

This essay, published as a chapter in Sentencing Multiple Crimes (Jesper Ryberg, Julian V. Roberts & Jan W. de Keijser eds., 2017) examines the bulk-discount approach to sentencing multiple offenders.  It argues that bulk discounts are not only appropriate and even mandatory from the just deserts perspective, but that as a general matter, there should be a substantial reduction in sentence for each additional offense when it comes to multiple-offense sentencing.

After providing specific examples of multiple offenders who were sentenced consecutively, the chapter discusses the relationship between culpability and character from the perspective of just deserts theory or retributivism.  It then advances the claim that sentences for multiple offenders should not reach the level at which the state would be communicating an unfairly and inappropriately harsh assessment of the character of each multiple offender.  It also considers the ways in which multiple offenders are more culpable than single-crime offenders and concludes by insisting that discounts for multiple offenders and premiums for repeat offenders are not inconsistent.

November 3, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, November 2, 2017

Sex offender registration laws meet Apprendi procedural rights in new Pennsylvania ruling

A helpful reader altered me to an interesting new ruling from appellate court in the Commonwealth of Pennsylvania, Commonwealth v. Butler, NO. J-A21024-17 (Pa. Supp. Ct. App. Oct. 31, 2017) (available here). Folks concerned about the reach of sex offender registration laws and fans of the Supreme Court's Apprendi line of jurisprudence will both want to check out this opinion.  Here is how it starts and a key part of the ruling:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016.  In this case, we are constrained by our Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework for designating a convicted defendant a Sexually Violent Predator (“SVP”), violates the federal and state constitutions. As such, we are compelled to reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements....

Apprendi and Alleyne apply to all types of punishment, not just imprisonment.  See S. Union Co. v. United States, 567 U.S. 343, 346-360 (2012).  Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.  See Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007)....

We recognize that our Supreme Court did not consider the ramifications of its decision in Muniz with respect to individuals designated as SVPs for crimes committed after SORNA’s effective date.  Nonetheless, our Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case.  In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.  Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP.  Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.  Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

As a fan of Apprendi rights who has long been concerned that courts sometimes work too hard to limit their logical reach, I am pleased to see this state court come to a seemingly sound conclusion in a controversial setting.  In addition, I get a kick out of imagining, if now asked what case applied Apprendi rights to the SORNA setting, saying "the Butler did it."

November 2, 2017 in Blakely in the States, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets?

The question in the title of this post is prompted by this new Guardian article, headlined "Trump's 'alarming' death penalty call threatens suspect's chance of fair trial, experts warn." And that article was prompted by this series of tweets by Prez Trump this morning:

Prez Trump tweet around midnight on 11/2: "NYC terrorist was happy as he asked to hang ISIS flag in his hospital room.  He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!"

Prez Trump tweets around 8am on 11/2:  "Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system... ...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"

I welcome all sorts of comments from all sorts of litigators about whether and how they think these tweets might impact the federal prosecution of Sayfullo Saipov for mowing down people in NYC.

Prior related posts:

November 2, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences? | Permalink | Comments (22)

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Lots more impressive work in Teen Vogue's "Kids Incarcerated" series

In this post a few weeks ago I noted that Teen Vogue has been giving sustained attention to the issues of juvenile incarceration in this "Kids Incarcerated" series of articles.  This series now has dozens of articles that are work checking out, and these recent articles especially caught my attention and seemed worthy of additional promotion (though every article in the series looks great):

November 2, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Congratulations to new addition to Third Circuit, Judge (and sentencing scholar) Stephanos Bibas

As first noted in this post five months ago, Prez Donald Trump nominated a prominent sentencing scholar, Professor Stephanos Bibas, for a judgeship on the US Court of Appeal Third Circuit. As I said back then, I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and because we have co-authored articles such as Making Sentencing Sensible and Engaging Capital Emotions.  (Also, Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press; his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas.)

Given this background, nobody should be surprised that I am extremely excited by this news from DC that today the "Senate voted to confirm Stephanos Bibas to the 3rd Circuit Court of Appeals."  I am confident that Judge Bibas will be a spectacular jurist, and I am especially eager to see how he handles the many federal sentencing appeals that are a regular part of the docket of every US Court of Appeals.

November 2, 2017 in Who Sentences? | Permalink | Comments (4)

Wednesday, November 1, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death

One way the criminal justice system has been operationalized in response to the opioid crisis has been in the form of various state homicide charges — ranging from manslaughter to murder — being brought against persons who distribute drugs that result in the death of a drug user.  But this news report from North Carolina, headlined "How the ‘Len Bias Law’ of 1988 is being used to get longer prison sentences today," details how federal prosecutors can and will be able to pursue and secure more extreme sentences on drug offenders without ever bringing a homicide charge:

In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area.  The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year.  On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said.

Elton Wayne Walston was sentenced to 27 years in prison Monday after he was found guilty of distributing heroin that resulted in the death of a Wilson man in 2015. Walston, 66, was also found guilty of one count each of possession with intent to distribute heroin and illegally possessing a firearm and ammunition, along with four counts of distribution of heroin.

U.S. District Court Judge Louise W. Flanagan handed down the sentence, which was announced Tuesday in Raleigh by Robert J. Higdon Jr., the U.S. Attorney for the Eastern District of North Carolina. Walston was sentenced under the U.S. Anti-Drug Abuse Act of 1988, which carries a mandatory minimum prison term of 20 years and a maximum life sentence, along with a fine of up to $2 million, Higdon said. The statute is also known as the Len Bias Law, named for the first-team all-American basketball player at the University of Maryland who died of a cocaine overdose in June 1986, two days after he was the second overall pick by the Boston Celtics in the 1986 NBA draft.

A charge of second-degree murder might sound more imposing, but a conviction under the Len Bias Law usually results in a longer prison sentence, said Special Assistant U.S. Attorney Boz Zellinger.  Unlike in cases of second-degree murder, prosecutors do not have to prove malice, only that the victim’s death was caused by ingesting the drugs....

Higdon said the opioid crisis is a matter of life and death. The federal statute, he said, is needed to help combat a soaring epidemic that resulted in 60,000 drug overdoses across America last year.  He said 1,100 people died of overdoses last year in North Carolina, with three dying each day across the state.  “The death result law will be used more and more frequently,” Higdon said during a news conference Tuesday afternoon at the Terry Sanford Federal Building in downtown Raleigh.  “Our office, along with the entire U.S. Department of Justice, is determined to hold accountable those who deal these deadly drugs to enrich themselves. This prosecution is an example of that determination.”

U.S. Assistant Attorney Edward Gray said Walston first came to the attention of federal prosecutors after a member of a drug task force in Wilson reported a rise in heroin overdoses in the area.   In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area. The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year. On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said. The victim was at his brother’s home in Wilson....  Mollenahauer said she and her boyfriend left the home again at 1:30 a.m. When she returned at 5:30 a.m. she found the victim lying on the bathroom floor and not breathing. Emergency workers arrived and pronounced the man dead at 6:21 a.m., Higdon said.

Mollenhauer pleaded guilty to distribution of a quantity of heroin and aiding and abetting.  She was sentenced to nearly four years in prison.

Walston’s aunt, Emma Hardeman, a retired teacher who lives in Chicago, said Tuesday that her nephew is not the “big-time drug dealer” portrayed by federal prosecutors during his trial and at Tuesday’s press conference.  Hardeman said Walston was a former U.S. Air Force serviceman who suffered from post-traumatic stress syndrome after serving in Vietnam. She said her nephew was a longtime “functional addict” who sold drugs to support his own habit.

“He was a nickle-and-dime person,” she said. “He couldn’t even keep the lights and cable on. He didn’t have a $100,000 and a 100 pounds of heroin when they arrested him. He was a victim, too.” Hardeman said prosecutors should have held Mollenhauer more responsible.  She said Mollenhauer and her boyfriend returned to the victim’s home twice as he lay dying to take money from his wallet to buy more heroin.  Hardeman said family members have met with several federal lawyers and intend to appeal Walston’s sentence. “We are not going to lay down and let this die without fighting back,” she said. 

November 1, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Very excited for (not-so) new endeavor at OSU Moritz College of Law with creation of new Drug Enforcement and Policy Center (DEPC)

Images (1)Regular readers know that I often write about a range of drug enforcement and policy issues in this space and elsewhere, so I doubt anyone will be too surprised to read about this exciting new chapter for my work in this arena via this Ohio State University press release:

The Ohio State University Moritz College of Law announced today that it will establish the Drug Enforcement and Policy Center (DEPC) with funding provided by a $4.5 million gift from the Charles Koch Foundation.

The DEPC will support and promote interdisciplinary research, scholarship, education, community outreach and public engagement on the societal impacts surrounding legal reforms that prohibit or regulate the use and distribution of traditionally illicit drugs. Robert J. Watkins/Procter & Gamble Professor of Law Douglas A. Berman will lead the center, which will draw on institutional expertise from the Moritz College of Law, John Glenn College of Public Affairs, College of Social Work and across the university to examine the impact of modern drug laws, policies and enforcement on personal freedoms.

“The Drug Enforcement and Policy Center will serve as an objective, reputable voice in the national conversation relating to drug laws and enforcement,” said Moritz College of Law Dean Alan C. Michaels. “Doug is the perfect person to lead this interdisciplinary endeavor as we build on our strengths at the law school -- and comprehensively across Ohio State -- with research and outreach activities that will provide critical evidence to help inform policy decisions at the local, state and national levels.”

The DEPC will foster collaboration among Ohio State’s nationally recognized faculty in the areas of criminal law, public affairs, legislative reform, community well-being, economic development and social justice to explore how the “war on drugs” and other drug enforcement policies have affected Americans over the past half-century and possibilities for reform and improvement. It will also serve as an independent and reliable source for researchers, policymakers, the media and others interested in objective information about drug enforcement and reform, including rigorous examination of ongoing efforts by many states to replace blanket marijuana prohibition with various legalization and regulatory systems and rules.

“I am honored to serve as the first executive director of the Drug Enforcement and Policy Center as we begin important work across a breadth of critical topics at a time when leaders of all political beliefs are looking for reliable and objective evidence concerning the impact of modern drug policies and practices,” Berman said.

Cross-posted at Marijuana Law, Policy and Reform

November 1, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Tuesday, October 31, 2017

Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?

Despite the fact that Prez Obama and Attorney General Eric Holder sometimes hinted at having some ambivalence about the modern death penalty, the Justice Department during the Obama era consistently pursued and secured federal death sentences against high-profile mass murderers such as the Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof.  Now, sadly, we have our first high-profile mass murder of the Trump era in which the murderer lives on to be subject to criminal prosecution.  The headline, "NYC terror attack leaves 8 dead, several injured; suspect's notes pledged ISIS loyalty," and first few paragraphs of this Fox News report highlight some of the reasons I would expect this latest mass murderer to soon be facing a federal capital charge:

A suspect accused of plowing a pickup truck onto a bike path and into a crowd in New York City Tuesday, killing at least eight people and injuring 11 more, is not a U.S. citizen and is originally from Uzbekistan, federal law enforcement sources have confirmed to Fox News.

The suspected driver, 29-year-old Sayfullo Saipov, had handwritten notes pledging his loyalty to the Islamic State terror network and shouted "Allahu Akbar" after the crash, law enforcement officials told Fox News. Saipov, who was shot by police, was taken into custody and remains hospitalized.

The suspect, from Ukbekistan, had a green card, a source told Fox News. Saipov came to the U.S. in 2010, and, according to The Associated Press, has a Florida license but may have been living in New Jersey.  Saipov was an Uber driver who had passed a background check, the company told Fox News.  It added that Saipov has now been banned from the app, and Uber has offered assistance to the FBI.

His notes, written in Arabic and pledging loyalty to ISIS, turned up in and near the vehicle, Fox News is told. In addition, The New York Post reported that investigators found "an image of the ISIS flag inside his vehicle."

Four of the injured were teachers and students who were riding on a short yellow school bus near Stuyvesant High School when they were hit by the suspect's Home Depot rental truck. One student remains in critical condition.

A victim killed in the attack was a Belgian citizen, Belgian Deputy Prime Minister and Foreign Affairs Minister of Belgium Didier Reyners tweeted on Tuesday. Three Belgians were also injured.  Others killed in the attack were Argentine citizens, according to Argentina's Foreign Ministry. Argentine newspaper La Nacion reported five of the eight people killed were Argentines traveling in the U.S. on a celebratory vacation.

As I have said after other similar horrible mass killing incidents, jurisdictions that retain the death penalty presumably do so in order to have the ultimate punishment available for these kinds of ultimate crimes.  Especially because both Prez Trump and Attorney General Sessions have be express supporters of the death penalty, I would be truly shocked if Sayfullo Saipov is not soon a capital defendant.

October 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state judge: what sentence for autistic man whose first convictions resulted from years of fondling young girl?

Perhaps because we recently have been discussing mandatory minimum sentences for aggravated sexual offenses in my Criminal Law class, I was intrigued by this sentencing story out of the state courts in Kansas.  The piece is headlined "Judge to weigh input before sentencing child molester, including numerous letters supporting him," and here are the basics that set up the question in the title of this post:

In August a jury convicted James M. Fletcher, 35, of Lawrence, of five counts of aggravated indecent liberties with a child, for repeatedly fondling a girl over the course of more than two years, starting when she was 11. Under sentencing guidelines, even though he has no other criminal history, Fletcher faces up to life in prison with no possibility of parole for at least 25 years, plus lifetime registration and supervision if he were to be paroled.

Fletcher’s sentencing hearing was Monday, but a ruling was delayed until Nov. 9. Judge Peggy Kittel took under advisement a request from Fletcher’s attorneys to give him a lighter sentence than what the guidelines require. Kittel said she wanted time to weigh her decision “due to the length of sentence Mr. Fletcher is facing.”

His situation is unusual, Kittel said.  “What makes this case so hard is that Mr. Fletcher has no criminal history, yet is facing a lifetime sentence,” Kittel said.

The numerous letters of support from family, friends, neighbors and co-workers are “impressive,” Kittel said. Fletcher’s co-workers lauded him as a capable electrical engineer, intelligent and even “brilliant,” she said.  “And yet a jury found him guilty of betraying the trust of (the victim),” the judge said. “…He stands convicted of something, really, ethically and morally wrong.”

More than three dozen people attended Monday’s hearing.  That included the victim, who also testified at the trial, but most were supporters of Fletcher. None spoke, and neither did Fletcher other than yes and no answers to the judge, with his head otherwise bowed. Fletcher, who has been jailed since his conviction, appeared in shackles and inmate clothing. The judge did, through prosecutors, receive and read a letter from the victim with a picture that she drew, but the letter was not read aloud nor the picture displayed in court. The judge also referenced the many letters in Fletcher’s support that she received earlier.

Fletcher’s attorneys, Sarah Swain and Cooper Overstreet, emphasized his lack of criminal history, his strong support system — pointing to Fletcher’s wife, parents, relatives and friends in the audience — his model behavior while out on bond prior to his conviction and his proactivity in seeking counseling for what was described in trial as a sexual attraction to the teenage body type. “That’s a very rare thing,” Swain said. “These can only be positive steps, steps in the right direction.”

Swain also added that, prior to legislation known as Jessica’s Law, the crimes of which Fletcher was convicted would have carried a substantially lighter sentence. That law, in part, increased penalties for certain sex crimes against children. Defense attorneys requested a total sentence for Fletcher of two and a half years, or 29 and a half months on each count, running concurrently.

Prosecutor Mark Simpson said the defense's arguments were not compelling enough to depart from sentencing guidelines. In fact, Simpson said some of those same points made Fletcher’s crimes even worse. “She trusted him,” Simpson said of the victim. “He was able to have access to her in a way that she could not have been more vulnerable.”

A psychological evaluation of Fletcher concluded that he would not be able to “groom” a child because he had autism, Simpson said, but that diagnoses only came when Fletcher was 34 and seemed to contradict descriptions of him in the numerous letters of support. The same analysis concluded that Fletcher intellectualized and rationalized behavior, limiting the ability of any treatment to be effective, Simpson said.

Simpson said the crimes occurred in a house under the same roof as several of Fletcher’s relatives, who at one point even suggested that his “cuddling” was inappropriate. Simpson said Fletcher orchestrated the abuse in part by trying to convince the girl she was only dreaming it. “This was not one bad decision,” Simpson said. “This was ongoing — years of carefully planned abuse by the defendant.”

Prosecutors are requesting a sentence of life in prison for Fletcher.  Simpson said that if Fletcher were paroled after 25 years, he would have served the equivalent of five years of prison for each count. "That does not seem like an inappropriately long sentence to me," he said.

Fletcher was charged in Douglas County District Court in September 2015 with one count of aggravated indecent liberties with a child under 14, with four more counts added in May 2016.  Charges indicate Fletcher molested the girl from December 2012 through January 2015, when the victim was 13.  The victim told the jury that numerous times when she stayed at Fletcher’s house in Lawrence, he fondled her bare breasts under her T-shirt at night. She said sometimes she was awakened by the action but that she pretended to be asleep, and that afterward she felt “scared,” “confused” and initially passed off the encounters as dreams “to give myself a reason to not have to tell anybody.”

The girl said no one else saw the alleged molestation and that she never told anyone until February 2015, after a confrontation between Fletcher and her mother, where Fletcher told her mother he was sexually attracted to teens and worried he would develop an attraction to the girl.

This kind of case is the sort that, in my view, showcases why sentencing decision-making can be so challenging for judges and why modern mass incarceration in a consequences of so many choices by so many players in the criminal justice system.  As the article reveals, the severity of the sentence here appears to be the product of, inter alia, the legislature increasing punishments under Jessica's law, prosecutors bringing multiple charges, the defendant contesting those charges at trial, and the operation of state sentencing guidelines.  And still, it appears, the sentencing judge has authority to impose a sentence as low as only 2.5 years in prison or as long as a mandatory 25 years in prison.  If/when judges regularly max out sentences in these kinds of tough cases, prison populations will always be large.

This case also serves as a notable example of how many different ways one can characterize offense conduct and offender characteristics.  Is this case properly and usefully labelled a violent offense?  Is it properly and usefully labelled a first or a repeat offense?  Is this the worst kind of sex offense because of the age of the victim and the duration of the activity or would the label repeat child rape not fairly characterize the the criminal activity.  And is the defendant here clearly autistic?  Does that matter?  Is he at high risk to reoffend if he only serves 2.5 years in prison?  Might be be at higher risk to reoffend if he were sentenced to a longer prison term? 

October 31, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Monday, October 30, 2017

Interesting and encouraging new Gallup numbers on reports of crime victimization

Adj9kjn7qecu-5slyra5yqAs reported in this new posting from Gallup, "Twenty-two percent of Americans say a conventional crime was committed against their household in the previous 12 months, the lowest proportion since 2001." Here is more:

Over the past decade, the percentage reporting their household was victimized by any of seven different crimes averaged 26% and never dropped below 24%.

Gallup began computing its annual index of self-reported crime victimization in 2000.  The index is based on the "yes" responses from U.S. adults as to whether they or anyone in their household was the victim of any of seven common crimes -- ranging from vandalism to violent crimes -- in the past 12 months.

This year's drop in crime was not reported across all groups equally. Nonwhites and those with annual household incomes under $40,000 are about as likely this year as they were in 2016 to say their household had experienced a crime.  Some crimes were also much more likely to occur than others:

  • 12% said someone in their household had money or property stolen, down from 17% in 2016.
  • 10% were the victims of vandalism, down from 14% last year.
  • 3% had their house or apartment broken into, down from 5%.
  • 3% had an automobile stolen, compared with 4% in 2016.
  • 2% said someone in their household was mugged or physically assaulted, compared with 3% last year.
  • 2% said someone in their household was sexually assaulted, compared with 1% in 2016.
  • 1% had money or property taken by force with a gun, a knife, another weapon or physical attack, compared with 2% in 2016....

In all cases, the crime may or may not have been reported to the police. Some official statistics on crime rely only on counts of crimes reported to police, so they may underestimate crime incidence. Not included in the list are digital crimes such as identity theft or computer hacking, which will be the subject of a future Gallup report....

Americans ranked crime as one of the nation's most important problems two decades ago, but the combination of dramatically falling crime rates through most of the 1990s and the rise of other issues in the new century pushed it down the priority list of national problems.

With at least one in four American households victimized by crime every year from 2008 through last year, however, the threat of crime has continued to be a concern for many Americans.

Theories abound for why crime rates rise and fall, and it is too early to know whether this year's drop in reported crime will be sustained. But at worst, it ends the increase of recent years and, at best, it holds the potential to signal further reductions in crime in the future.

October 30, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (5)

"Most California Jurisdictions Show Declines In Property Crime During Justice Reform Era, 2010-2016"

The title of this post is the title of this short research report that I learned about via email from the Center on Juvenile and Criminal Justice. Here I how the email describe the report:

A new research report released today from the Center on Juvenile and Criminal Justice examines local trends in California’s property crime from 2010 through 2016, a period marked by major justice system reform, including Public Safety Realignment, Prop 47, and Prop 57.  Despite the relative stability of recent property crime trends, the report finds substantial variation in crime at the local level, which suggests that recent crime patterns may result from local policies rather than state policy reform.

The report finds:

• From 2010 to 2016, property crime rates fell more than 3 percent statewide despite the implementation of large-scale criminal justice reforms.

• For every major crime except vehicle theft, more California jurisdictions reported decreases than increases in their crime rates from 2010 to 2016. For example, just 141 jurisdictions reported increased rates of burglary, while 367 jurisdictions showed decreases.

• Across California, crime trends have been highly localized. Of the 511 cities and local areas included in this analysis, 42 percent showed rising rates of property crime from 2010 to 2016, with an average increase of 12.8 percent, and 58 percent showed decreases, with an average decline of 18.1 percent.

• Many jurisdictions, especially those that began with higher rates of property crime, have devised successful policies and practices that are improving local safety. Jurisdictions that showed decreasing rates of property crime between 2010 and 2016 had higher rates at the start of the reform era than those showing increases.

"The divergence between the 213 cities that have shown property crime increases since 2010 versus the 298 cities with property crime decreases was so large — a 31 percentage point difference — that the two categories of cities actually swapped places. This striking result suggests that reform measures such as Proposition 47 are not the reason a minority of cities experienced crime increases." — Mike Males, Ph.D., Senior Research Fellow

October 30, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (4)