Wednesday, March 1, 2017

Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month

There has so far been only four executions nationwide in 2017.  The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March.  But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:

Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death.  Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates.  The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.

The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.

The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.

The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month.  The state’s supply of vecuronium bromide expires on March 1, 2018.

The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional.  Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...

Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997.  Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997.  At the time, the state Correction Department said multiple executions reduced stress on prison staff.

For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.

March 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

The US Supreme Court yesterday heard oral argument in Dean v. United States.  The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates.  The oral argument transcript, available here, is a interesting read for a bunch of reasons.  And I have a little summary of the argument posted here at SCOTUSblog.  Here is how that posting starts: 

It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.  During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c).  But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion.  This textualist point may carry the day for the defendant. 

March 1, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, February 28, 2017

Telling comments about violent crime from AG Sessions in speech to NAAG

Campaign-2016-sessions-profile.jpeg-1280x960Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG).  The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:

First, let’s put things in context.  Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear.  There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk.  The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much.  But the preliminary data for the first half of 2016 confirmed these trends.  The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015.  The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.

Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades.  Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.

These numbers should trouble all of us.  My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....

While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us.  It is a basic civil right to be safe in your home and your neighborhood.  We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.

So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe.  This will be a top priority of the Department of Justice during my time as Attorney General.

We know the first step in fixing something is recognizing you have a problem.  For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case.  And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.

Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.

We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014.  Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery.  In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level.  While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.

Under my leadership at the Department of Justice, this trend will end.  Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.

We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing.  They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious.  They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.

This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.

The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society.  But the costs of rising crime are even more severe.  Drug crimes and violent felonies change the lives of victims forever.  Neighborhoods hit by rising crime suffer deep economic harm.  And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities.  In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.

The federal government has a key role to play in addressing this crisis.  I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes.  We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.

I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime.  Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.

Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.

To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.

The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service.  The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation.  It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends.  We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive.  Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....

Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors.  Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.

For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right.  We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars.  And we need to support the brave men and women of law enforcement as they work day and night to protect us.

February 28, 2017 in Criminal justice in the Trump Administration, Gun policy and sentencing, Who Sentences? | Permalink | Comments (12)

"Unusual Deference"

The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN.  Here is the abstract:

Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States.  What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices.  The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices.  This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory.  As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference.  Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey.  Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

What are we likely to hear (or hoping to hear) from Prez Trump tonight about crime and punishment?

Prez Trump is slated to give his first speech to Congress tonight, and this Politico piece reports on some of the advance buzz coming from the White House about the tone and content of the speech.  Here are brief excerpts from the report that might interest sentencing fans:

President Donald Trump’s highly-anticipated first address to Congress on Tuesday will detail an “optimistic vision” for the nation that vows to push a “bold agenda” on tax and regulatory overhauls, reforms in the workplace and a promise to “sav[e] American families from the disaster of Obamacare.”

That’s according to a list of 11 key bullet points outlining Trump’s speech from the White House that was obtained by POLITICO in advance of the address.  In it, Trump will also paint his agenda with broad, unifying tones, saying he will “invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.”

“All Americans share a desire for safe communities for themselves and their families,” reads one of the points....

Here is the outline of Trump’s address, distributed by the White House:...

• In Tuesday night’s speech, he will lay out an optimistic vision for the country that crosses the traditional lines of party, race and socioeconomic status. It will invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.

• All Americans share a desire for safe communities for themselves and their families....

• It will be a speech addressed to ALL Americans AS Americans — not to a coalition of special interests and minor issues.

• Americans can expect a speech that is grounded firmly in solving real problems for real people. How can we make sure that every American who needs a good job can get one? How can we get kids who are trapped in failing schools into a better school? How we can keep gangs and drugs and violent crime out of their neighborhoods?

• The President will reach out to Americans living in the poorest and most vulnerable communities, and let them know that help is on the way.

Based on Prez Trump's prior speeches, I am expecting mostly generalities rather than many specifics on the topics of crime and punishment. But the tone and nature of generalities here could still provide addition insight into the likely direction and priorities for the administration of the federal criminal justice in the Trump era.

February 28, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Monday, February 27, 2017

"How Trump's Twitter use could help bring down NC sex offender law"

The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites.  Here are excerpts from the press account:

A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.

The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.

The justices heard oral arguments Monday in Packingham v. North Carolina.  Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket.  Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....

Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.

Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.

Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....

Conservatives on the court asked few questions.  Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.

Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders."  This full transcript of the SCOTUS oral argument is available here.

February 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Ohio Secretary of State reports that 82 non-citizens have recently cast votes in Ohio

Because I continue to be intrigued by Prez Trump's claim that millions of persons committed a crime by voting illegally in our last election, I find interesting this new story about illegal voting in Ohio headlined "82 non-citizens voted in Ohio, Husted says." Here are the details:

Nearly 400 non-citizens are registered to vote in Ohio — 82 of whom have managed to cast ballots in at least one election since 2015, Secretary of State Jon Husted said Monday.  Husted, a Republican and likely candidate for Ohio governor, said his office discovered the 385 registrations from non-citizens on a biennial review of the state's voter database.  In total, 7.9 million people were registered to vote in Ohio as of the November election, so the non-citizens make up fewer than 1 in every 20,000 registered voters — far from the widespread voter fraud President Donald Trump has claimed.

Husted is sending law enforcement the names of the 82 non-citizens who voted, so officials can investigate and decide whether to prosecute. His office will send letters to the non-citizens who registered but never voted, requesting they cancel their registration. If they fail to do so, they could ultimately face prosecution. Election fraud can carry a fifth-degree felony charge in Ohio.

As Trump has alleged voter fraud in last year's election, Husted has countered that election fraud isn't a common problem. Still, his office has boasted of its three reviews of the voter rolls to look for non-citizens, the first such reviews conducted by an Ohio secretary of state. “In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Husted said Monday in a statement.

Husted didn't say how which elections the 82 non-citizens had voted in, but even if they all voted in November 2016, they couldn't have swayed Ohio's presidential result, for instance.  Eighty-two votes would have amounted to 0.0015 percent of the state's November voters. None of the non-citizens cast a vote in a race that was tied or decided by one vote, Husted said....

The secretary of state's office began the biennial review in 2013. Reviews that year and in 2015 uncovered a total of 44 non-citizens who voted in an election.  Of those, eight people have been convicted of breaking the law and two other cases still are pending, spokesman Josh Eck said.

Trump continues to claim — without any evidence — that massive voter fraud marred the 2016 presidential election. On Jan. 23, the new president told congressional leaders between 3 million and 5 million illegal votes caused him to lose the popular vote to Democrat Hillary Clinton.  Trump won the election with a convincing victory in the Electoral College, even as Clinton won the popular vote by nearly 2.9 million votes. 

If the Ohio story is reasonably representative of the national story (as is often the case with bellwether Ohio), then we might reasonably suspect that there may have been between 3 thousand and 5 thousand illegal votes case in the 2016 election.  Whether or not Ohio is representative of other states in this particular context, I am quite pleased to learn that the crime of voter fraud is not rampant in the great state of Ohio.

February 27, 2017 in Criminal justice in the Trump Administration, Offense Characteristics | Permalink | Comments (28)

Senate Judiciary Committee this week to consider two (holdover) nominees to US Sentencing Commission

Sentencing fans in general and federal sentencing fans in particular should be interested in and intrigued by the first agenda item listed for this Wednesday's Executive Business Meeting of the Senate Judiciary Committee: Nominations — Charles R. Breyer, to be a Member of the United States Sentencing Commission (Reappointment); Danny C. Reeves, to be a Member of the United States Sentencing Commission.

After the nominations of Judges Breyer and Reeves were stalled last Congress, outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work.  I have been somewhat pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but perhaps my pessimism was misguided.  Of particular important, if Judges Breyer and Reeves receive confirmation from the Senate in short order, they would join Acting USSC Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC.  (The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.)

Notably, as previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable and consequential proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners, and those proposed amendments have generated a whole lots of public comment.  If the USSC gets two more Commissioners in the coming days, and if the two new folks and the two existing folks agree to move forward with some form of the amendments promulgated late last year, it is possible that the first big tangible federal sentencing development of the "Trump era" involves significant federal sentencing guideline amendments.  (But, of course, this is a whole lot of "ifs" and thus nobody should count on anything in this space these days.)

February 27, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

SCOTUS grants cert on (yet another) AEDPA habeas procedure case

It has now been more than two decades since the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and that law has had lots and lots of impacts on federal habeas practice and procedure.  One big impact has been lots and lots of technical habeas procedure issues needing SCOTUS attention, and another such issue is now before the Court on the merits after a certiorari grant this morning in Wilson v. Sellers.  Here is the SCOTUSblog case page for Wilson v. Sellers, and here is its description of the issue now before the Justices:

Issue: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker — that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision — as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.

February 27, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?

The question in the title of this post is prompted by this recent National Review commentary authored by C. Jarrett Dieterle and headlined "Gorsuch v. Over-Criminalization." Here are excerpts:

Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system.
The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.
In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.”...

Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches.  In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider....

Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals....

Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense.... “Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”

Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.

February 27, 2017 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, February 26, 2017

SCOTUS considering cases involving sentencing and collateral consequences in coming days

This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:

Packingham v. North Carolina

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

Argument preview: Court to consider social media access for sex offenders 

Esquivel-Quintana v. Sessions

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.

Argument preview: Removal of an immigrant for “sexual abuse of a minor” 

Dean v. United States

Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Argument preview: Justices to consider limits of sentencing discretion under advisory guidelines

For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.

February 26, 2017 in Booker in district courts, Collateral consequences, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, February 25, 2017

"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"

The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:

Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.

“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....

But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...

Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up.  Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”

Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.”  For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform.  For fiscal conservatives, it’s about cutting rising corrections costs.”...

But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.

Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump.  “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.

Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation.  Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress.  “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”

Recent prior related post:

February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement

March_2017_CoverA helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States.  The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:

The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.

In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....

But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....

The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.

Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.

One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.

We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.

Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.

February 25, 2017 in Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (3)

Friday, February 24, 2017

Interesting commentary on Prez Obama's Harvard Law Review article and his criminal justice legacy

As noted in this prior post, last month the Harvard Law Review published this lengthy article authored by Barack Obama titled "The President’s Role in Advancing Criminal Justice Reform."  Today I saw at the interesting new site Carceral Complex this pair of follow-up commentaries:

President Obama’s Criminal Justice Legacy: What Went Wrong by Dustin Palmer

Commentary on “President Obama’s Criminal Justice Legacy: What Went Wrong” by Brett Diehl

The themes of the potent and extended first piece by Dustin Palmer are summarized toward its conclusion:

Law reviews are an excellent place for professorial musings, but the weight of the law (and its failures) is borne by the people. After combing through the legalese, it is important to evaluate actions, not words. Obama’s rhetoric fits comfortably within the narrative of what supporters might have hoped would happen when a young former community organizer and constitutional law professor was elected president. The article itself, and its length, surely attempts to function as a “final word” on his justice reform efforts. Anecdotes about taking clemency participants to lunch or visiting a federal prison paint images of the compassionate, hopeful campaigner.

His actual record – on fundamental, defining aspects of the justice system – is much to the contrary. Failures to reform the War on Drugs, immigration abuse, police militarization, civil asset forfeiture, and the surveillance state left the criminal justice system not “smarter, fairer, and more effective” but undeniably worse. They are a national tragedy, and this failure will define his legacy.

The second shorter piece by Brett Diehl is somewhat less harsh, but not really less damning:

One is left with a sense that the HLR article may represent more of an attempt to construct an individual legacy than to empower actual reform. It was clear by January 2017 that many of the gains in rethinking criminal justice policy of the previous eight years would be rolled back under Trump and his Attorney General Jefferson Beauregard Sessions. Yet Obama’s piece ends, like most of his speeches, with an optimistic declaration that, “I remain hopeful that together, we are moving in the right direction.” Ever an optimist, not once does he mention the incoming administration.

Yes, Obama’s administration made important gains in specific geographic and policy areas. But overall, it failed to shift the paradigm around criminal justice in our nation. In writing to the audience of the HLR, this failure was perpetuated. While it may reach the occasional lay reader, the piece’s formatting, length, and density surely scared off many potential readers (myself included). In this, Obama’s presidency proves to be more words over actions: rhetorical power, fit for us to remember fondly, without bold progress.

February 24, 2017 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (9)

Thursday, February 23, 2017

AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons

As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:

Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population.  "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21.  "I direct the Bureau to return to its previous approach."

The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime.  The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.

For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.

February 23, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12)

Florida legislators talk of repealing mandatory minimums for nonviolent offenses

As reported in this local article, headlined "In major Tallahassee reversal, mandatory sentences called a waste of taxpayer money," there is a notable movement to repeal some mandatory minimum sentences in the Sunshine State.  Here are the details:

Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration at Homestead Correctional Institution costs taxpayers an average of $18,064 per year — or $451,600 by the time she is released in 2023.

The Florida Senate Criminal Justice Committee concluded Tuesday that’s money poorly spent. It voted unanimously for SB 290, which would end minimum mandatory sentences for nonviolent offenses like Powell’s.  The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.  The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor.

The measure would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers.  It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.

Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee....

Greg Newburn, director of Families Against Mandatory Minimums, a conservative group that supports ending mandatory minimum sentences for nonviolent crimes, said “dozens of states have already made the decision to move in this area.” They include Georgia, Oklahoma and North Carolina. “The results are uniform,” he said. “We get lower crime. We get smaller prison populations. They’ve closed prisons and saved tens of millions of dollars.”

If Powell, the Homestead inmate, had sold two fewer pills in 2002, she would have gotten a 15-year sentence, he said. If she sold them today, it would be a seven-year sentence. Instead, she won’t be released until 2023. “There are many other people in similar situations who simply don’t need to be there,” he said. “It’s a waste of money. We receive no public safety benefit whatsoever.”

His organization supports full repeal of mandatory minimum drug laws — as states such as Michigan, New York and Delaware have done — but he considers the piecemeal progress proposed by the Senate “a good reform.”

Jim DeBeaugrine of the Center for Advanced Justice, a sentencing reform advocacy group, warned the committee that giving drug offenders shorter sentences will only keep them out of prison if they receive treatment for substance abuse and mental health issues. “If you try to do it on the cheap, the results of this outcome are compromised,” he said. “The only way you will ever end the issue of mass incarceration is you’ve got to stop putting so many people in prison.”

February 23, 2017 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (23)

Wednesday, February 22, 2017

Buck's notable dis of state finality interests in "flawed" capital sentence

Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality.  (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.)  Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):

In opposition, the State reminds us of the importance of preserving the finality of judgments.  Brief for Respondent 34.  But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529.  And in this case, the State’s interest in finality deserves little weight.  When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis.  In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.

In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above.  I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way.  Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.

February 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32)

"The Constitutional Law of Incarceration, Reconfigured"

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

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank.  This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention.  The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability.  And lower courts compounded the error by importing that reading into Due Process doctrine as well.

In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern.  The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw.  The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.

But commentary and developing caselaw since Kingsley has not fully recognized its implications.  I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers.  The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force.  In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

February 22, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Tuesday, February 21, 2017

A few notable criminal justice panels at CPAC

It is around that time of year for the annual Conservative Political Action Conference (CPAC), and the misbehavior of one conservative is generating all the pre-CPAC buzz. But, as has been the story for the last few years, sentencing fans should be intrigued by some of the criminal justice reform programming appearing on the CPAC 2017 agenda. Specifically, I found notable these two panels scheduled for Friday this week:

Prosecutors Gone Wild

Moderator: Pat Nolan, ACU Foundation Center for Criminal Justice Reform

David A. Keene, The Washington Times

Sidney Powell, Former U.S. Attorney

Kevin Ring, Families Against Mandatory Minimums

 

Conservatives Leading the Way on Criminal Justice Reform in State Capitals

Moderator: David Safavian, ACU Foundation Center for Criminal Justice Reform

State Rep. Julie Emerson (LA-39)

Marc Levin, Right on Crime, Texas Public Policy Foundation

Pat Nolan, ACU Foundation Center for Criminal Justice Reform

February 21, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Reversing course, Florida Supreme Court allows capital prosecutions to proceed while state legislature still working through Hurst fix

As explained in this local article, on Monday the Florida Supreme Court issued a new ruling about the administration of the death penalty, and issue which has been a big mess for the state since the Supreme Court's Hurst ruling last year.  Here are the basics:

In what was described as an “about-face” after a previous ruling, the Florida Supreme Court on Monday ordered that death penalty cases can proceed, even with an unconstitutional law still on the books. The order came as the Legislature prepares to address a pair of Florida high court rulings last fall that struck down the state’s most recent death-penalty sentencing scheme as unconstitutional and effectively halted capital cases.

In a pair of October opinions, the state court ruled that a new law — passed in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida — was unconstitutional because it required only 10 jurors to recommend death “as opposed to the constitutionally required unanimous, 12-member jury.” The October majority opinion in the case of Larry Darnell Perry also found that the new law “cannot be applied to pending prosecutions.”

But in a reversal of that decision Monday, the majority ruled that capital cases can move forward, even before lawmakers fix the statute. Attorney General Pam Bondi hailed the ruling, saying in a statement it “provides our courts with the clarification needed to proceed with murder cases in which the death penalty is sought.”...

The majority on Monday decided that the new law can be applied to pending prosecutions — and is constitutional — “if 12 jurors unanimously determine that a defendant should be sentenced to death.”

But in her dissent, Justice Barbara Pariente argued that what could be a “temporary” fix, until lawmakers address the issue, could lead to more litigation. “Such concerns are precisely why it is for the Legislature, not this (Supreme) Court, to enact legislation curing the act’s fatal 10-2 provisions, assuming the Legislature intends for the death penalty to continue to be imposed in Florida,” Pariente wrote in a dissent joined by Justice Peggy Quince.

But [House Judiciary Chairman Chris] Sprowls, R-Palm Harbor, said the decision “finally” tells lower courts they can proceed with capital cases. “That is what I think people within the criminal justice system would expect. What they did not expect is to have a paralysis created and that’s what the court had done. Today they have alleviated that paralysis by at least allowing cases to proceed,” he said.

Defense lawyers, however, took a harsher view. “As a society, we rely upon court precedent to determine how to interpret and apply the laws. The (Supreme) Court’s about-face within these opinions is confounding. They also seem incongruent with the court’s unanimous plea, in (a case known as) Steele, to the Legislature to fix what the court said it couldn’t,” 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service. Mills was referring to a 2005 opinion in State vs. Steele in which the court urged the Legislature to require a unanimous jury vote, rather than the previous simple majority vote, in capital-case proceedings.

While Monday’s opinion may have resolved questions about how the courts can proceed, for now, it likely won’t slow down the Legislature’s rush to address the issue early in the session that begins March 7. “We still want to move it rapidly, get it up and out to make sure there’s no question that this is what the statute says and that we have a working death penalty scheme in the state of Florida,” Sprowls said.

Sprowls’ committee is slated to consider a measure (HB 527) Tuesday that would do away with the 10-2 jury recommendations and instead require unanimity for death sentences to be imposed. A Senate panel will give a final vetting to a similar proposal the following day. The issue deals only with the sentencing phase of death-penalty cases, after jurors unanimously find defendants guilty of crimes. House Speaker Richard Corcoran, R-Land O’ Lakes, and Senate President Joe Negron, R-Stuart, told The News Service — before the court’s decision Monday — they wanted to send a death penalty measure requiring unanimous jury recommendations to Gov. Rick Scott by the end of the session’s first week.

“My position on it is that you have about 200 death penalty cases that are in abeyance right now, because of the Supreme Court’s ruling, and I can’t think of anything more important to the family of victims and also to a person charged with a capital felony that their cases proceed justly and with due process through the criminal justice system,” Negron said Wednesday. “To me, it’s our responsibility as legislators to make sure that the law is appropriately enforced. That would be a top priority.” The cases “in abeyance” referred to more than half of Florida’s Death Row inmates who are eligible for new sentencing hearings under a separate state court ruling addressing retroactivity of the Hurst decision, which was predicated on a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona.

The full Florida Supreme Court ruling discussed here is available at this link.

February 21, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time.  Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Monday, February 20, 2017

Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?

I just came across this pair of notable papers exploring empirically whether and how less sleep might mean more punishment from federal judges:

"Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences" by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara

Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation.  Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions.  We propose that sleep deprivation in judges increases the severity of their sentences.  We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.

"Are Sleepy Punishers Really Harsh Punishers?: Comment" by Holger Spamann

Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.'s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.'s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.

February 20, 2017 in Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (3)

Sunday, February 19, 2017

Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts

Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials.  In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot.  Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).   

Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:

For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.

Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.

Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.

The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.

This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.

These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.

Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.

I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.

Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.

These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.

There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.

In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.

The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.

Download FEBRUARY 2017 CLEMENCY FAILURE

UPDATE:  For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.

Prior related post:

February 19, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"I sentenced criminals to hundreds more years than I wanted to. I had no choice."

13FRISK-master675The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:

In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....

Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.

After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....

Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.

February 19, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (11)

Saturday, February 18, 2017

BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol

This AP article reports on a notable an unusual provision in Arizona's new execution protocol.  The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:

The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.

The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients.  It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.

Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions.  However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.

Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die.  The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.

The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.

Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf.  The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....

Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.

It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.

Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.

Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.

Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):

The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.

February 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, February 17, 2017

Hoping for the best from Prez Trump's creation of crime task force

As noted in this prior post, last week Prez Trump signed three crime-fighting executive orders.  In my view, the EO with arguably the most enduring significance and substance was this one creating a “Task Force on Crime Reduction and Public Safety.” Here is the heart of what the EO says about this Task Force:

The Attorney General shall determine the characteristics of the Task Force ... [and the] Task Force shall:

(i) exchange information and ideas among its members that will be useful in developing strategies to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime;

(ii) based on that exchange of information and ideas, develop strategies to reduce crime;

(iii) identify deficiencies in existing laws that have made them less effective in reducing crime and propose new legislation that could be enacted to improve public safety and reduce crime;

(iv) evaluate the availability and adequacy of crime-related data and identify measures that could improve data collection in a manner that will aid in the understanding of crime trends and in the reduction of crime; and

(v) conduct any other studies and develop any other recommendations as directed by the Attorney General....

The Task Force shall submit at least one report to the President within 1 year from the date of this order, and a subsequent report at least once per year thereafter while the Task Force remains in existence. The structure of the report is left to the discretion of the Attorney General.  In its first report to the President and in any subsequent reports, the Task Force shall summarize its findings and recommendations under subsections (c)(ii) through (c)(v) of this section.

I find interesting and valuable that this Task Force is tasked with, inter alia, seeking to "improve data collection" and to write a detailed report with a year.  More generally, I think the Task Force is a really good idea and one that is, notably, not all that much of a variation on crime commissions recently urged by folks across the political spectrum.  Specifically, back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission, and in May 2015 President Obama’s Task Force on 21st Century Policing made this notable "overarching recommendation": "The President should support and provide funding for the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform."

Among the reasons I am eager and hopeful about the work of this Task Force is the fact that crime realities appear quite divergent in different parts of the county.  While some big cities like Chicago, Los Angeles and Washington DC seem to be experiencing worrisome increases in crime in recent years, other big cities like Philadelphia, New York and San Diego seem to be achieving record low crime rates.  I sense there is a similar diversity of experiences in small cities and rural areas nationwide as well.  Ideally, the AG's Task Force can and will advance and deepen our understanding of all the nationwide diverse and distinctive crime and punishment realities throughout the United States circa 2017-18.

February 17, 2017 | Permalink | Comments (7)

"The Progressive Prosecutor's Handbook"

The title of this post is the title of this notable new short piece by David Alan Sklansky now available via SSRN. Here is the abstract:

A growing number of chief prosecutors are winning office by pledging a more thoughtful and evenhanded approach to criminal justice — an approach more attentive to racial disparities, the risk of wrongful conviction, the problem of police violence, and the harms of mass incarceration.  But there is no roadmap for progressive prosecutors, no consensus set “best practices” for elected prosecutors who want to make criminal justice not just more effective but also fairer and more humane.

This short essay starts to develop such a roadmap.  It offers ten suggestions to reform-oriented chief prosecutors: decide in advance how you want to be judged, evaluate and reward your attorneys for what you care about, collect and share data, build in second looks, have a clear and generous disclosure policy, do not turn a profit, reduce case delays, investigate police shootings independently and transparently, pay attention to office culture, and diversity your staff.

February 17, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

US Sentencing Commission announces plans and opens registration for two(!) national seminars

I was intrigued this morning to receive an email from the US Sentencing Commission announcing that it will be conducting two "National Seminars on the Federal Sentencing Guidelines." As this USSC webpage reveals, historically the USSC has presented only a single annual seminar, and even that event did not happen in 2013 due to tight budget times thanks to the sequestration that year.  But now, despite a new administration saying two bad old federal regulations are going to be cut for every shiny new one, apparently the mighty Sentencing Commission this year was able to flip this around by offering two shiny new seminars when in the bad old days we only got one.

Jokes aside, I have always found the USSC annual seminars to be terrific and informative events, and the fact that these events are free to participants and fully open to the public truly makes them a very valuable and important form of government public service. This USSC page provides the details of the two upcoming events and links for registering for them:

2017 National Seminar Series on the Federal Sentencing Guidelines

May 31-June 2 in Baltimore

September 6-8 in Denver

The Commission will also hold a seminar in San Diego on June 22-23 for judges only.  Other seminars are open to the public.

Registration opened on Friday, February 17, 2017 for both the Baltimore and Denver seminars.  Registration is on a first come, first served basis.

February 17, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Thursday, February 16, 2017

"Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration"

The title of this post is the title of this notable new report from the Vera Institute of Justice authored by Danielle Sered. Here is an overview of the report from Vera:

In the United States, violence and mass incarceration are deeply entwined, though evidence shows that both can decrease at the same time.  A new vision is needed to meaningfully address violence and reduce the use of incarceration — and to promote healing among crime survivors and improve public safety.  This report describes four principles to guide policies and practices that aim to reduce violence: They should be survivor-centered, based on accountability, safety-driven, and racially equitable.

This two-page fact sheet sets out the "four principles" referenced above:

Principle 1: Responses to violence should be survivor-centered.

Principle 2: Responses to violence should be based on accountability.

Principle 3: Responses to violence should be safety‑driven.

Principle 4: Responses to violence should be racially equitable.

February 16, 2017 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (16)

Notable accounting of what Mayor Emanuel sought from AG Sessions to deal with Chicago's gun violence

This local article, headlined "Emanuel used meeting with Sessions to get specific on fed help," reports on the requests Chicago's mayor made to the new Attorney General to help combat violence in a city that has been a frequent talking point about violent crime for Prez Trump.  Here is how the article starts:

Attempting to turn President Donald Trump’s talk into federal action, Mayor Rahm Emanuel said Tuesday he used his first meeting with U.S. Attorney General Jeff Sessions to present a list of ways the federal government can help stop the bloodbath on Chicago streets. “On the FBI, DEA, ATF, send more agents [who] are permanently placed here in Chicago to cooperate and work with our Chicago Police Department. They do it in a number of areas today. But, we don’t have the full expanse of what we need to do the job and we have a good relationship with those three federal entities,” the mayor said.

“Second is invest in the technology that you saw in Englewood in the 7th District and the 11th District — the strategic predictive analytic rooms — help us take that to other police districts in the city.”

The mayor’s wish list goes beyond policing to expansion of mentoring, summer jobs and after-school programs from which both the state and federal government have been AWOL, as he put it. “I talked about making sure that our kids have an alternative consistent with what I’ve said about BAM [Becoming A Man] as a mentoring program,” Emanuel said. “There’s an account that deals with ex-offenders. We would like to see that because we have the largest ex-offender program. . . . And help us with summer jobs and after school where the federal government has actually been cutting those resources.”

Emanuel said he also renewed his call for the U.S. Justice Department to step up federal prosecution of gun crimes. A Chicago Sun-Times story last year found that federal weapons charges in Chicago have fallen slightly over the past five years — despite the local rise in firearm offenses. Federal prosecutors in some other major urban areas — Manhattan, Brooklyn, Milwaukee, Detroit and Baltimore — have charged far more people with weapons offenses than the U.S. attorney’s office in Chicago has.

Sources said the meeting with Sessions focused exclusively on ways the Justice Department can assist Chicago in stopping the unrelenting gang violence on city streets.

February 16, 2017 in Gun policy and sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (4)

Wednesday, February 15, 2017

"Emotional Judges and Unlucky Juveniles"

The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.

The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.

These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

February 15, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool

This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool.  The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:

A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.

"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.

Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North.  He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.

Smith said state law prevents her from going into details of the conditions Golsby had to follow.  All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by.  "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.

She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.

Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.

February 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28)

Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston

DownloadThe Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:

From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.

Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.

One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....

How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.

One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....

Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?

We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....

One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.

That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.

I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.

February 15, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Tuesday, February 14, 2017

Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics

This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:

Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear.  He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.

About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit.  She introduced him to her younger sister, age 13.  This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.

The two 13-year-olds started skyping Zachary together.  Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance.  By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear.  Her face was not visible, nor were her private parts.

That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist.  Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature.  Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.

Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone.  All this, from five underwear pictures.  If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.

Instead, he took a plea bargain.  This is what prosecutors do: scare defendants into a deal.  Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.

Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender."  The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months.  "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."

As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce.  Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor.  The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....

Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.

Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry.  But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.

I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.

UPDATE:  A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above.  This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.

February 14, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (19)

"The American Death Penalty Decline"

The title of this post is the title of this new paper recently posted to SSRN and authored by Brandon Garrett, Alexander Jakubow and Ankur Desai. Here is the abstract:

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.”  That decline has become more dramatic.  Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties.  In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year.

While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it.  This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016.  This analysis of death sentencing data from 1990 to 2016, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences.  We examine state and county-level changes in murder rates, population, victim race, demography, and other characteristics that might explain shifting death sentencing patterns.

We find that death sentences are strongly associated with urban, densely populous counties.  Second, we find that death sentences are strongly associated with counties that have large black populations.  Third, we find homicide rates are related to death sentencing in three ways: contemporaneously within and between death sentencing counties, lagged within and between death sentencing counties. and that counties with more white victims of homicide have more death sentencing.  Fourth, we find that death sentencing is associated with inertia or the number of prior death sentences within a county.  These results suggest what remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences.  We conclude by discussing the practical and legal implications of these trends for the much-diminished death penalty and for criminal justice more broadly.

February 14, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"

The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme.  I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:

It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.

Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched.  He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.

Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call.  At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room.  Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.

But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”

UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment.  Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.

February 14, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5)

Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration

Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style."  Here are excerpts:

It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things.  But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration.  In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree.  The American Civil Liberties Union and the American Conservative Union Foundation agree.  Bernie Sanders and Newt Gingrich agree.

Here’s what they agree on:

• The United States went overboard on mass incarceration in the 1980s and 1990s.

• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.

• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.

• Jailing people is really, really expensive.

• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.

• There are alternatives to imprisonment that keep Americans safe.

(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)

Even all this agreement is no guarantee of progress in Washington.  President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator.  He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose.  But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote.  So the administration can be expected to be unhelpful, with Congress a question mark.

While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans.  So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states.  Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.

California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.

More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....

The cost of prisons was a huge issue.  In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”

Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.

That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”

“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”

At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden.  And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.)  Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....

The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature.  “You have a problem and we’re going to help you with your problem.”  Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.

The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.

Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail.  Thousands of people are sent back to prison each year for technical revocation of parole or probation.  As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....

The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities.  One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent.  Twenty years ago, a Republican in Georgia would have boasted about the opposite.

If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”

This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years.  The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.

I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders.  But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement.  And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.

February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Poll shows strong commitment to rehabilitation and prison alternatives for youth

A new poll sponsored by the Youth First Initiative reveals notable support for a rehabilitative approach to juvenile justice.  This webpage from Youth First reports on the essentials:

A new poll released today by Youth First shows that 78 percent of Americans favor keeping young people out of prisons and instead prefer community-based alternatives that are proven to lead to better outcomes.

At a time when partisan polarization is dominating the political landscape, the poll finds that Americans from a wide range of backgrounds and all political stripes support shifting the youth justice system’s focus from incarceration and punishment to prevention and rehabilitation.  Youth First, a national advocacy organization working to end the unconscionable practice of youth incarceration and reform the youth justice system, commissioned the poll which was conducted by GBA Strategies.

“Youth prisons are notoriously dangerous, ineffective, and outdated – and there is a clear consensus that it’s time to change the system,” said Liz Ryan, President of Youth First. “We know that kids can be rehabilitated without being locked up, if given the opportunity. States across the nation should unify behind this growing movement to close youth prison facilities and focus on solutions that actually work.”

The survey of over 1,000 adults found that:

· 89 percent support design treatment and rehabilitation plans that include a youth’s family in planning and services.

· 83 support providing financial incentives for states and municipalities to invest in alternatives to youth incarceration, such as intensive rehabilitation, education, job training, community services, and programs that provide youth the opportunity to repair harm to victims and communities.

· 69 percent support increasing funding to provide more public defenders to represent children in court.

· 70 percent support requiring states to reduce racial and ethnic disparities in the youth justice system.

Respondents cut across partisan affiliations, with 81% of Democrats, 83% of Independents, and 68% of Republicans supporting reform efforts.

February 14, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (4)

Monday, February 13, 2017

Is due process violated when a plea is taken and sentence imposed on a nearly dead-drunk defendant?

I am always eager to find funny sentencing stories, but the sentencing stories that might seem funny are really never that funny.  This Omaha World-Herald article, which prompts the question in the title of this post, is one of those not-really-funny stories.  The article is headlined "Court accepts guilty plea from Omaha woman too drunk to stand, sparking concerns due process was violated," and here are the particulars:

Douglas County Judge Lawrence Barrett convened court on a Thursday morning in early February, 15 cases on his docket. The first: A 32-year-old Omaha woman accused of violating the probation term she had been given for reckless driving.

A month after Barrett had placed her on probation, Sarah E. Carr was arrested in Lincoln on suspicion of driving drunk.  Officers said her blood-alcohol content was over .15. Hence the probation violation.  Hence the Feb. 2 hearing.  Barrett called out Carr’s name.  Her aunt approached. “Your Honor, Sarah is here, but she’s passed out in the car.” Barrett: “She’s passed out in her car?”

After some discussion, the aunt and a court official went to the vehicle, pulled out a drunken Carr and loaded her into a wheelchair. What happened next shocked longtime legal observers.  Judge Barrett allowed the woman, plopped in her wheelchair, to plead guilty to a probation violation. He then found her guilty and sentenced her to 90 days in jail.  And no one protested.

After Carr received her sentence, deputies administered a breath test. Her blood-alcohol content measured .44 — 5½ times the legal limit for driving, and a level so high that it could lead to death, according to toxicology experts.

Her barely conscious plea has caused a stir in the courthouse, prompting concerns about what was done to preserve the woman’s constitutional rights to due process. Under the Fifth Amendment, a defendant must “knowingly, willingly, intelligently and voluntarily” enter a plea.  Carr has since told others she has little to no memory of being in court.  (Attempts to interview Carr at the jail last week were unsuccessful.)

After The World-Herald inquired about the case, Deborah Lee, a 16-year Douglas County public defender who represented Carr, resigned.  Douglas County Public Defender Tom Riley confirmed that Lee resigned but declined to detail reasons.  Carr is far from the first defendant to show up drunk at court — especially in county courtrooms where DUIs and other drunken offenses are heard.

But courthouse veterans say this is the first case they could recall in which the typical protocol wasn’t followed when someone suspects a defendant is drunk.  In other cases, judges have had deputies or probation officers administer a breath test. T ypically, a defense attorney then asks for the case to be delayed.  The judge increases bail or revokes it.  And the defendant sobers up in jail until his or her next court date.

Riley said someone should have put a stop to the Carr hearing. “This certainly isn’t the first person who has appeared in court under the influence,” Riley said. “It was incumbent upon someone in the courtroom — whether it was our lawyer or the prosecutor or the (judge) on their own observation — to at least make further inquiry into her condition.”

Judge Barrett, a 23-year veteran of the bench and a former assistant public defender, said he hopes the woman gets help before she further harms herself. He encouraged a World-Herald reporter to listen to a digital recording of the hearing.  When the reporter asked if Carr was drunk, the judge said: “Not that I know of.” “I questioned her,” Barrett said. “She listened to everything I asked — and responded.”

Barrett’s statement that he didn’t know the woman was drunk raised eyebrows among those who observed the hearing.... An Omaha man, who was among about 30 people gathered in the courtroom, later said he was appalled at the scene, calling it a “miscarriage of justice.” An attorney in the courtroom recalled that the woman appeared “dazed and confused.”...

[Kevin] Slimp, the assistant city prosecutor, could not be reached for comment.  However, Omaha City Prosecutor Matt Kuhse said Slimp has told him that he did not know Carr was drunk. In fact, Kuhse said, Slimp had little recall of anything about the case, other than the woman being in a wheelchair.  Kuhse said city prosecutors often are balancing multiple cases — and often are having side conversations with defense attorneys while another case is being heard.

“When you notice that someone is just not getting what’s going on, we do have an obligation to step in,” Kuhse said. “That being said, I’m not convinced there’s enough evidence to show that the prosecutor should have stepped in in this case. We now know that it was a .44 (blood-alcohol level), but that’s the benefit of hindsight. My understanding is that she answered appropriately to the judge’s questions. It wasn’t like she blurted out ‘banana’ to a yes-no question.”...

Riley said he was “distressed” by the case. “Do I think the result would have been different? Probably not,” he said. “But there’s a right way to do things, and there’s a wrong way to do things. “Shame on us for not doing it the right way.” Riley said he assigned another public defender to visit Carr in jail last week. The new attorney explained to Carr that she probably would succeed if she attempted to withdraw her plea. One reason to try: Riley said his office could have argued for a lesser jail term. Barrett gave Carr the maximum term for that misdemeanor.

Carr was not interested — instead opting to focus on getting better, Riley said. “Mercifully, there would have been options to undo this,” Riley said. “I’m glad that this person wasn’t irreparably harmed. “But there were enough problems with all of this to share blame all around. I’m hopeful this will open people’s eyes up to how we should be doing things.”

February 13, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Major Ponzi schemer gets major break from guidelines ... but still subject to major prison time

This local article, headlined "Lexington Ponzi scheme founder, 70, gets nearly 15-year prison term for ZeekRewards," reports on a notable white-collar sentence handed down this morning in a North Carolina federal courthouse.  Here are some details:

A federal judge Monday handed Paul Burks, founder of ZeekRewards.com, a prison sentence of 14 years and eight months for his lead role in the Lexington Ponzi scheme. Judge Max Cogburn Jr. agreed with U.S. attorneys' "fair and generous" sentencing recommendation, a minimum 15 years and eight months and a maximum 19 years and seven months for the 70-year-old Burks.  Burks could have been sentenced to up to 59 years under federal sentencing guidelines.

ZeekRewards.com, founded in 2010, was one of the largest Ponzi schemes in U.S. history at $939 million, according to federal regulatory officials and prosecutors.  The Lexington companies, which debuted in January 2011, were shut down and their assets frozen in August 2012. There were more than 800,000 victims worldwide.

Cogburn dropped Burks' sentencing by a year so that it would be about double the 90-month prison term handed to Dawn Wright-Olivares. Wright-Olivares and her stepson, Daniel Olivares, pleaded guilty in February 2014 to fraud charges after reaching agreements in December 2013 with the U.S. Attorney’s Office for the Western District of N.C. Wright-Olivares cooperated with the federal government in its case against Burks.  Wright-Olivares served as ZeekRewards' chief operating officer, while Olivares was senior technology officer. Olivares received a two-year prison term.

On July 21, a federal jury found Burks, of Lexington, guilty of wire and mail-fraud conspiracy, wire fraud, mail fraud and tax-fraud conspiracy. Burks has been free on bond for the past 4 ½ years.  The wire and mail-fraud conspiracy charge, the mail-fraud charge and the wire-fraud charge each carry a maximum prison term of 20 years and a $250,000 fine.  The tax-fraud conspiracy charge carries a maximum prison term of five years and a $250,000 fine.

Burks opted not to speak on his behalf except to say he approved of the case being presented by his attorney, Noell Tin.... U.S. attorneys, citing Burks’ health and his role as caregiver to his wife, Susan, who has breast cancer, recommended 15.5 years to just short of 20 years. Tin asked Cogburn to set a sentence of no more than 11.5 years, also in consideration for the Burks’ health.

Cogburn and Kenneth Bell, the receiver for ZeekRewards, responded to Tin’s request by saying the U.S. attorneys’ sentencing recommendation was “fair and generous” given the level of crime involved in the Ponzi scheme. “This is a huge amount of money, which is why the sentencing guidelines run to such a large extent,” Cogburn said. “He is essentially facing a life sentencing given his health conditions.”

Tin said that among the health issues affecting Burks are hypertension, diabetes, heart illness, chronic renal failure, prostate cancer, the removal of his esophagus and mild dementia. Burks appeared in good health at the sentencing, though he walked with a slight limp.... The likely [prison] facility [for Burks] could be Butner, where fellow Ponzi scheme felony Bernie Madoff resides....

Cogburn and Bell cited the enormity of the Ponzi scheme and how Burks and other ZeekRewards officials misled and mispresented how the company generated money and how it paid “winners.” Cogburn compared Burks’ marketing strategy of capturing hundreds of millions of dollars to the Biblical story of Jesus of turning loaves and fishes into enough food to feed at least 5,000 individuals. “The scheme got out of hand, more than Mr. Burks may have thought was going to happen,” Cogburn said. “But anyone could have seen what was going to occur outside himself and his (marketing) cheerleaders.”

February 13, 2017 in Booker in district courts, Offense Characteristics, White-collar sentencing | Permalink | Comments (2)

Will Prez Trump and AG Sessions listen to law enforcement leaders with diverse views on crime and punishment?

LEL_report_cover-209x300The question in the title of this post is prompted by this New York Times article, headlined "Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step," discussing a new report issued by organization Law Enforcement Leaders to Reduce Crime and Incarceration. The NY Times piece provides this accounting of the report along with some diverse perspectives on how diverse law enforcement leaders look at and toward the Trump Administration:

Not surprisingly, President Trump’s approach to crime, which began to take shape in a series of moves last week, generated swift criticism from liberals and civil rights groups. But it also stirred dissent from another quarter: prominent police chiefs and prosecutors who fear that the new administration is out of step with evidence that public safety depends on building trust, increasing mental health and drug addiction treatment, and using alternatives to prosecution and incarceration.

“We need not use arrest, conviction and prison as the default response for every broken law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and David O. Brown, a former Dallas chief, wrote in a report released last week by a leading law enforcement group. “For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.”

The organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is made up of more than 175 police officials and prosecutors, including Charlie Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district attorney; and William J. Bratton, the former police chief in New York and Los Angeles. Other leading law enforcement groups have also called for an increase in mental health and drug treatment, a focus on the small number of violent offenders who commit the most crimes, training officers on the appropriate use of force, and retooling practices to reflect a growing body of evidence that common practices, such as jailing people before trial on minor offenses, can actually lead to an increase in crime. The group warned that “failing to direct these resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”

Mr. Trump has shifted the focus from civil rights to law and order, from reducing incarceration to increasing sentences, from goading the police to improve to protecting them from harm. Last week, he swore in a new attorney general, Jeff Sessions, who has said that the government has grown “soft on crime,” and helped block a bipartisan bill to reduce sentences. Mr. Sessions said that a recent uptick in crime in some major cities is a “dangerous, permanent trend,” a view that is not supported by federal crime data, which shows crime remains near historical lows. The president signed executive orders that repeatedly connected public safety to immigration violations, vowing to fight international crime cartels; to set up a task force to “comprehensively address illegal immigration, drug trafficking, and violent crime”; and to focus on preventing violence to peace officers.

Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said. Kim Ogg, the new district attorney in Houston, won office promising to make changes like dropping prosecution of low-level drug offenses, reducing the use of money bail and releasing videos of police shootings. Those priorities were much more aligned with the Obama administration than Trump’s, in whose pronouncements Obama-era buzzwords like deincarceration, constitutional policing and de-escalation — reducing the use of force during police encounters — have all but disappeared. Mr. Trump did tell a gathering of police chiefs this week: “As part of our commitment to safe communities, we will also work to address the mental health crisis. Prison should not be a substitute for treatment.”...

Some police chiefs said they are reserving judgment until there is more meat on the bones of the administration’s plans. “Hopefully, they are going to seek our practical advice,” said Edward A. Flynn, Milwaukee’s police chief, who also heads the legislative committee of the Major Cities Chiefs Association. “That to us is key. We don’t want any more policy bromides grounded in campaign promises. We want ideas grounded in practical wisdom about how to protect our cities.”

Still, a number of chiefs — and perhaps the vast majority of lower-ranking officers — say they are basking in the glow of Mr. Trump’s positive attention after feeling under siege during the Obama administration. “Law enforcement in general was painted with a very broad brush,” said Michael J. Bouchard, the sheriff of Oakland County, Mich. “The idea was that policing was broke, and I think that was a false dialogue.”

Unions agreed. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”

Law enforcement leaders responded more positively to Mr. Trump’s order to ratchet up the fight against organized crime cartels, which operate through intermediaries in even the smallest American cities through the sale of heroin, methamphetamine, and other drugs. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said the nation also needed to address its appetite for drugs: “We must do everything we can to stop the flow of drugs into our country, but doing so would not solve our substance abuse problem.”

The full 28-page report referenced here is titled "Fighting Crime and Strengthening Criminal Justice: An Agenda for the New Administration," and it is available at this link. An executive summary and press release provides these five bullet points describing the report's suggested priorities:

• Prioritizing fighting violent crime.

• Enact federal sentencing reform.

• Increasing mental health and drug treatment.

• Bolstering community policing.

• Expanding recidivism reduction programs.

February 13, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19)

Sunday, February 12, 2017

Is big data "reinforcing racial bias in the criminal justice system"?

The question in this post is prompted by this Washington Post commentary headlined "Big data may be reinforcing racial bias in the criminal justice system." The piece is authored by Laurel Eckhouse, a researcher with the Human Rights Data Analysis Group’s Policing Project at UC Berkeley, and here are excerpts:

Big data has expanded to the criminal justice system. In Los Angeles, police use computerized “predictive policing” to anticipate crimes and allocate officers. In Fort Lauderdale, Fla., machine-learning algorithms are used to set bond amounts. In states across the country, data-driven estimates of the risk of recidivism are being used to set jail sentences.

Advocates say these data-driven tools remove human bias from the system, making it more fair as well as more effective. But even as they have become widespread, we have little information about exactly how they work. Few of the organizations producing them have released the data and algorithms they use to determine risk.

We need to know more, because it’s clear that such systems face a fundamental problem: The data they rely on are collected by a criminal justice system in which race makes a big difference in the probability of arrest — even for people who behave identically. Inputs derived from biased policing will inevitably make black and Latino defendants look riskier than white defendants to a computer. As a result, data-driven decision-making risks exacerbating, rather than eliminating, racial bias in criminal justice....

We know that a black person and a white person are not equally likely to be stopped by police: Evidence on New York’s stop-and-frisk policy, investigatory stops, vehicle searches and drug arrests show that black and Latino civilians are more likely to be stopped, searched and arrested than whites. In 2012, a white attorney spent days trying to get himself arrested in Brooklyn for carrying graffiti stencils and spray paint, a Class B misdemeanor. Even when police saw him tagging the City Hall gateposts, they sped past him, ignoring a crime for which 3,598 people were arrested by the New York Police Department the following year.

Before adopting risk-assessment tools in the judicial decision-making process, jurisdictions should demand that any tool being implemented undergo a thorough and independent peer-review process. We need more transparency and better data to learn whether these risk assessments have disparate impacts on defendants of different races. Foundations and organizations developing risk-assessment tools should be willing to release the data used to build these tools to researchers to evaluate their techniques for internal racial bias and problems of statistical interpretation. Even better, with multiple sources of data, researchers could identify biases in data generated by the criminal justice system before the data is used to make decisions about liberty. Unfortunately, producers of risk-assessment tools — even nonprofit organizations — have not voluntarily released anonymized data and computational details to other researchers, as is now standard in quantitative social science research.

For these tools to make racially unbiased predictions, they must use racially unbiased data. We cannot trust the current risk-assessment tools to make important decisions about our neighbors’ liberty unless we believe — contrary to social science research — that data on arrests offer an accurate and unbiased representation of behavior. Rather than telling us something new, these tools risk laundering bias: using biased history to predict a biased future.

February 12, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Looking at Ohio Gov Kasich's clemency record and those of his predecessors

This local article, headlined "Kasich stays conservative with pardons," discusses how my Governor has recently used his clemency powers. Here are the details:

Gov. John Kasich used his executive clemency power a little more in 2016 than in previous years, but remains the most conservative governor in 30 years in granting commutations, pardons and reprieves for criminal sentences.

Kasich, a Republican now in his seventh year as governor, approved 18 of 526 requests for clemency last year, slightly more than 3 percent. He approved just two of 244 requests in 2014. The 18 cases approved last year included one in which the Florida man seeking clemency for a 41-year-old Ohio crime died after filing the application; Kasich approved the pardon posthumously.

Statistics obtained by The Dispatch from a public-records request made annually to the governor's office do not include death-penalty cases, such as those granted on Friday when Kasich granted reprieves to move back eight scheduled executions in response to a court order.

In six years in office, Kasich approved 86 of 2,291 requests to reach his desk, about one in 26.

Ohio governors have nearly unlimited clemency power in criminal cases after the Ohio Adult Parole Authority has made a recommendation in a case. The governor does not have to agree with the parole board's decision, but he did in all 13 cases he approved last year.

The clemencies approved by Kasich were all for old, mostly non-violent crimes. All were pardons, which is "an act of grace or forgiveness that relieves the person pardoned from some or all of the ramifications of lawful punishment," according to the Ohio Department of Rehabilitation and Correction....

Kasich agreed with the parole board in all but eight of 526 cases last year. In the eight cases, he denied clemency where the parole board recommended it.

In the three decades that Ohio has tracked gubernatorial clemency, governors have used the power in different ways, sometimes reflecting personal, political or ideological persuasions.  Ted Strickland, a Democrat who preceded Kasich as governor, approved 20 percent of 1,615 clemency requests that he handled between 2007 and 2011.  Most cases involved low-level, nonviolent offenses, but he commuted five death-penalty sentences to life in prison without parole....

Republicans George V. Voinovich, governor from 1991 to '98, and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests received.  James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.

Democrat Richard F. Celeste, governor from 1983 to 1991, touched off a legal battle in the final days of his second term when he commuted the death sentences of eight men and granted clemency to 25 female prisoners who were victims of battered-woman syndrome.  As a result of Celeste's actions, the General Assembly changed the law to require governors to have a recommendation from the parole board before making a clemency decision.

February 12, 2017 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0)

Saturday, February 11, 2017

A (crazy) harsh sentence for a voter fraud conviction in Texas

According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use).  In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime.  The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:

Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.

That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.

The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.

“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”

The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.

Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.

Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....

Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.

Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.

As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”

Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.

Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.

Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...

Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.

Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”

Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

February 11, 2017 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (30)

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, February 10, 2017

Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again

As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:

Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.

Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.

Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.

Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.

The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.

The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.

“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.

Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....

Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.

February 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests

A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement.  Here is the start of the opinion and a key paragraph from its heart:

We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement.  For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.  However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.

Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....

In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty.  Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row.  The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.

February 10, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, February 9, 2017

Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”

As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:

The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.

“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...

The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.

The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.

I am intrigued by all three of these orders, but I want to read the full orders before I comment on these.  Helpfully, the White House now has them available via these links:

Presidential Executive Order on a Task Force on Crime Reduction and Public Safety

Presidential Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking

Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

February 9, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)