Friday, July 21, 2017

Two notable new briefing papers on crime and punishment from the Vera Institute of Justice

The folks at the Vera Institute of Justice have released two new "briefing papers" under the series heading of "For the Record: Evidence on crime and safety in America." Here is how these papers are set up:

Criminal justice and immigration policy affects millions of lives in the United States. Yet, public policy is too often swayed by political rhetoric and unfounded assumptions. This is especially true in today’s era of rapid-response digital journalism, where the pace of publication means that stories with misleading information can easily go viral, and news consumption often occurs through curated social media feeds showing headlines that reinforce a person’s beliefs. Now, more than ever, there is a need for accessible, reliable information that can be used to fact-check stories in the press and on social media.

To improve understanding on justice issues currently elevated in public debate, the Vera Institute of Justice has created a series of briefing papers that provide an accessible summary of the latest evidence concerning justice-related topics. By summarizing and synthesizing existing research, identifying landmark studies and key resources, and, in some cases, providing original analysis of data, these briefs offer a balanced and nuanced examination of some of the significant justice issues of our time.

And here are links to the two papers via their titles, as well as an overview:

"The Prison Paradox: More Incarceration Will Not Make Us Safe" by Don Stemen:

Despite its widespread use, research shows that the effect of incarceration as a deterrent to crime is minimal at best, and has been diminishing for several years. Indeed, increased rates of incarceration have no demonstrated effect on violent crime and in some instances may increase crime. There are more effective ways to respond to crime—evidenced by the 19 states that recently reduced both their incarceration and crime rates. This brief summarizes the weak relationship between incarceration and crime reduction, and highlights proven strategies for improving public safety that are more effective and less expensive than incarceration.

"Measuring Public Safety: Responsibly Interpreting Statistics on Violent Crime" by Bruce Frederick:

With a few hyper-localized exceptions that require targeted attention, violent crime rates are lower today than they have been at any point over the past four decades. However, this era of public safety has been misrepresented by some media reports and public commentary concluding that violent crime increases in a few cities equal a sweeping national problem. This brief examines those erroneous conclusions about current crime trends—using both existing and original research—and describes how to avoid common pitfalls when interpreting statistics on violent crime.

July 21, 2017 | Permalink | Comments (1)

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

"The Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases"

The title of this post is the title of this interesting empirical paper authored by Stephanie Holmes Didwania that was recently posted on SSRN. Here is the abstract:

This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence — when one is charged — by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence.

To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.

July 20, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.  The Superior Court held SORNA’s registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA’s effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses.  For the following reasons, we reverse and hold: 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (27)

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Plea Agreements As Constitutional Contracts"

The title of this post is the title of this notable new article authored by Colin Miller available via SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes.  Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion.  No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes.  This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses.  First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements.  Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections — the implied covenant of good faith and fair dealing — would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.

July 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Bipartisan discussion of female incarceration issues at "Women Unshackled" event

My twitter feed was full of reports and links to a big criminal justice reform event yesterday which was given the title "Women Unshackled."  This Washington Post article, headlined "Officials from both parties say too many women are incarcerated for low-level crimes," reports on the event, and its coverage starts this way:

Democratic and Republic officials at a conference Tuesday said too many women are being incarcerated for nonviolent offenses, a troubling trend both groups said they were committed to tackling.

From Democratic Sen. Kamala Harris (Calif.) and Rep. Sheila Jackson Lee (Tex.) to Republican Rep. Mia Love (Utah) and Oklahoma Gov. Mary Fallin, there was bipartisan agreement that most of the women in jails and prison would be better served by drug rehabilitation and mental health services, rather than harsher sentences. They noted that most women in the criminal-justice system are victims of domestic abuse or sexual violence. And because most incarcerated women have small children, locking them away can destroy an already fragile family.

The discussion came during a day-long conference called “Women Unshackled,” presented by the Justice Action Network and sponsored by the Brennan Center for Justice at the New York University School of Law, the Coalition for Public Safety and Google.

Some additional coverage of the issues and individuals involved in this event can be found in these recent press pieces:

July 19, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Details emerging on new Trump Administration approach to asset forfeiture ... UPDATED with new DOJ memo

As noted in this prior post, on Monday Attorney General Jeff Sessions gave a speech in which he indicated that a "new directive on asset forfeiture" was forthcoming that, "especially for drug traffickers," sought "to increase forfeitures."  This new AP article, headlined "US restoring asset seizures - with safeguards," reports on what this new directive is going to include. Here are excerpts from the AP piece:

The Trump administration will soon restore the ability of police to seize suspects’ money and property with federal help, but The Associated Press has learned the policy will come with a series of new provisions aimed at preventing the types of abuse that led the Obama Justice Department to severely curtail the practice.

At issue is asset forfeiture, which has been criticized because it allows law enforcement to take possessions without criminal convictions or, in some cases, indictments. The policy to be rolled out Wednesday targets so-called adoptive forfeiture, which lets local authorities circumvent more-restrictive state laws to seize property under federal law. The proceeds are then shared with federal counterparts.

Former Attorney General Eric Holder significantly limited the practice in response to criticism that it was ripe for abuse, particularly with police seizures of small amounts of cash. Attorney General Jeff Sessions plans to ease those restrictions, but also impose new requirements on when federal law can be used, a senior Justice Department official briefed on the policy said Tuesday. The official, who spoke to the AP on condition of anonymity, was not authorized to discuss the changes before their unveiling.

Key changes include requiring more detail from police agencies about probable cause justifying a seizure before federal authorities get involved. Also, the Justice Department will have to decide more quickly whether to take on local seizures and also let property owners know their rights and the status of their belongings within 45 days of the seizure, faster than federal law requires.

Another key change will make it harder for police to seize less than $10,000 unless they have a state warrant, have made an arrest related to the seizure, have taken other contraband, such as drugs, along with the money, or the owner has confessed to a crime. Without at least one of those conditions, authorities will need a federal prosecutor’s approval to seize it under federal law.

Old rules set that threshold at $5,000, the official said. The old process rarely required a federal prosecutor’s sign-off, said Stefan Cassella, a former federal prosecutor and expert on asset forfeiture and money laundering law.

Sessions’ support for asset forfeiture is in keeping with his tough-on-crime agenda and aligns with his oft-stated view that the Justice Department’s top priority should be helping local law enforcement fight violent crime. Police departments use the seizures for expenses, and some agencies felt Holder’s restrictions left them without a critical funding source. When he forecast the rollback of the Holder provision at a conference of district attorneys, the announcement drew applause.

But an embrace of asset forfeiture follows bipartisan efforts to overhaul the practice, and as a growing number of states have made their own laws limiting its use. Republican Rep. Darrell Issa of California, who sponsored legislation this year to tightly regulate asset forfeiture, told the AP that Sessions’ move is “a troubling step backward” that would “bring back a loophole that’s become one of the most flagrantly abused provisions of this policy.”

“I’m glad that at least some safeguards will be put in place, but their plan to expand civil forfeiture is, really, just as concerning as it was before,” Issa said. “Criminals shouldn’t be able to keep the proceeds of their crime, but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen.”

UPDATE Here now is the official US Department of Justice news release, headlined "Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets Seized by State or Local Law Enforcement." And here is the associated one-page order.

July 19, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, July 18, 2017

"How California Softened its 'Tough-on-Crime' Approach"

The title of this post is the title of this interesting and effective little "policy study" produced by the R Street Institute and authored by Steven Greenhut. Here is its introduction:

California has a long history of pioneering criminal-justice reforms.  From the 1960s to the early 2000s, such reforms mostly toughened the state’s approach to handling criminals, with some of the most significant policy reforms implemented at the ballot box.  California’s past approaches — especially its “three-strikes” law — have become models for other states, although such policies have led to some troubling results.

More recently, as overall crime rates have fallen to levels not seen since the 1960s, the state has led the way both to soften those earlier approaches and to implement innovative policies that reduce sentences for some offenders. This shift has been driven in part by a prison-overcrowding crisis, but public sentiment has also changed over the years.

Given the high costs — both financially and in terms of civil liberties — the state’s incarceration-heavy approach imposed, these changing policies and attitudes are a welcome development.  Many of the tough-on-crime approaches of the past were driven by the state’s powerful law-enforcement lobby and “public safety” unions, who appeared at times more interested in protecting their budgets (and creating new “customers”) than promoting justice.

Not every new proposal is ideal, of course, and California has yet to embrace the kind of wide-ranging reforms in its corrections bureaucracy that have been implemented by Texas, for instance.  The state also has failed to implement significant reforms to its public-employee pension system and has moved away from outsourcing — measures that could help stretch California’s budget, which is burdened by the highest cost in the nation (total and per capita) for running its prison system.  Notwithstanding such costs, California still has an astoundingly high recidivism rate of approximately 65 percent.

This paper seeks to place these shifts in historical context. It examines a few of the most significant reform policies that have passed through the Legislature or been put to voters through the state’s robust initiative process.  As California goes, so goes the nation.  As such, it is worth seeing where the state is headed on this significant issue.

July 18, 2017 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3)

Should the US fight the war on drugs by actually fighting an actual war with Mexico?

The perhpas remarkable question in the title of this post is prompted by this remarkable commentary in US News authored by Matt A. Mayer, who is the CEO of Opportunity Ohio and a former senior official at the US Department of Homeland Security. The piece is headlined "To Solve the Opioid Crisis, Go to War," and here are excerpts:

Experts estimate that as many as 500,000 Americans could die from opioids over the next 10 years. Nearly all of the heroin and fentanyl hitting our streets is coming from Mexico, across the porous southern border. Mexico is also becoming, in some parts of the country, the main supplier of methamphetamine to the U.S., with overdose death rates increasing as the supply has surged.

We will spend tens of billions of dollars on addiction treatment, overdose responses, law enforcement activities, criminal justice processes and the ancillary costs associated with caring for the children of those who die from overdoses. Regardless of how much we spend, if we cannot substantially reduce or stop the flow of opioids and other death drugs across our southern border (and to a lesser extent through our mail system via China), we will continue to see tens of thousands of Americans die each year due to opioid and meth overdoses, with enormous damage to their families and communities....

To slow or stop the flow of opioids and other death drugs into our communities, we must secure the border with Mexico and methodically dismantle the distribution networks that the cartels have established in cities in all 50 states. The cartels are adaptive entities that will alter their strategy and tactics to counter each border and interior enforcement action we take to shut them down in the United States. Though the Mexican government makes some efforts to help with the cartels, corruption within the Mexican government and law enforcement is rampant. We simply can't rely upon the Mexican government for the kind of actions needed to crush the cartels.

This unfortunate reality raises a very uncomfortable question: Do we need to go to war with Mexico to ultimately win the war against opioids and other death drugs? By "go to war," I mean a formal declaration of war by Congress against Mexico in which we use the full force of our military might to destroy the cartels, the poppy fields and all elements of the drug trade. Ideally, as our fight is not with the Mexican government, its military or its people, which try to weaken the cartels, we would try to partner with those entities against the cartels, much as we partnered with the South Vietnamese government and military against the Vietcong and the North Vietnamese Army.

It sounds crazy, I know – unless you acknowledge we are already fighting a war with Mexico.

Short of such an all-out military effort, has anyone offered a realistic way to defeat the drug cartels and stop the flow of death drugs? Crushing the supply of opioids and other death drugs from Mexico will allow our treatment activities to gain ground against the epidemic and one day get ahead of it. If inexpensive heroin laced with fentanyl, or carfentanil, continues to be easily accessible in our communities, the wave of the opioid epidemic will simply continue to build. We must do something to force the wave to crest and to crash.

Let me put this issue in perspective. Since the first al-Qaida terrorist attack in Yemen in 1992, fewer than 5,000 Americans have died in terrorist attacks, with many of the deaths occurring on Sept. 11, 2001. In response to terrorist attacks, we waged wars in Afghanistan and Iraq, and spent hundreds of billions of dollars on external and internal security measures to detect and to prevent future attacks.

If we did all of that in response to radical Islamic terrorism, why is it so crazy to consider using our military power to defeat the Mexican drug cartels which have inflicted far more death, mayhem and costs on America than al-Qaida and the Islamic State group combined? Unlike terrorists living in far-off places, halfway around the globe, the Mexican drug cartels are operating right next door and within our communities, pushing enormous amounts of heroin, meth and other death drugs across the southern border and into the veins of our communities.

War with Mexico may sound crazy, but allowing militarized drug cartels to run drug production facilities aimed at supplying opioids and other death drugs to Americans within 1,000 miles of our southern border is even crazier, especially as the death count hits 50,000 people per year. We can continue to fight this war for decades with walls and arrests, or we can win this war in years with aircraft carriers, jets, bombs and the United States Marines.

Imagine how many lives we can save of those 500,000 Americans predicted to die because of Mexican opioids and meth. War with Mexico doesn't sound so crazy anymore, does it? 

July 18, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

The title of this post is the title of this notable note by Jeremy Isard that was brought to my attention by a helpful reader. Here is the abstract:

This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings.  Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison.  By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science.  Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.  

July 18, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, July 17, 2017

In latest speech, AG Sessions advocates for more gun and prescription drug prosecutions and more asset forfeiture

Attorney General Sessions gave another notable speech today, and this one was delivered to the National District Attorneys Association.  Regular readers are familiar with the themes AG Sessions has been stressing of late, but these excerpts highlight what struck me as some new parts to what the AG is talking up:

We have a multi-front battle in front of us right now: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers, combined with a culture in which family and discipline seems to be eroding further.

From the early 1990s until just a few years ago, the crime rate steadily came down across the country. But violent crime is rising.  The murder rate, for example, has surged nearly 11 percent nationwide in just one year — the largest increase since 1968.  Per capita homicide rates are up in 27 of our 35 largest cities....

These numbers are deeply troubling — and especially since they represent a sharp reversal of decades of progress. My best judgment is that this rise is not an aberration or a blip.  We must take these developments seriously and consider carefully what can be done about them.  Yielding to the trend is not an option for America and certainly not to us....

We must encourage proven police techniques like community-based, proactive policing and “broken windows” — policies that are lawful and proven to work. Better training, better morale, professional excellence are goals of yours. My goal is to help you be effective and never to make your work more difficult. I am asking our U.S. Attorneys to be leaders in this approach. In the long run, there is nothing we can do that is more impactful....

I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.

Next, the DEA reports that 80 percent of heroin addicts started with abuse of prescription drugs. As you know, more than 50,000 died of drug overdoses in 2015. Preliminary numbers indicate 2016 may hit 60,000. We have never seen numbers like this. This nation is prescribing and consuming far too many painkillers. This must end.

Last week, we announced the indictments of over 400 defendants as part of the annual Health Care Fraud Take Down. 120 of those involved opioid-related drug fraud and nearly 50 were doctors. Some of these frauds involved massive amounts of drugs. But I’m convinced this is a winnable war. We can significantly reduce this abuse, which includes the big drug companies as well.

DEA is making these cases a priority. They can make visits to physician and pharmacies and do checks on those who prescribe or sell these drugs. They are reviewing and identifying physician and pharmacy outliers that can help you narrow the search for crooks.

I would urge you to examine every case that involves an arrest of an individual illegally possessing prescription drugs. Make a condition of any plea bargain that the defendant tell where he or she got the drugs. Together, let’s get after these bad actors....

In addition, we hope to issue this week a new directive on asset forfeiture — especially for drug traffickers.  With care and professionalism, we plan to develop policies to increase forfeitures.  No criminal should be allowed to keep the proceeds of their crime.  Adoptive forfeitures are appropriate as is sharing with our partners....

As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact. With every conviction we secure, we make our communities safer.

July 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

When will SCOTUS take up a follow-up to Graham and Miller?

The question in the title of this post is prompted in part by this recent Atlantic article headlined "The Reckoning Over Young Prisoners Serving Life Without Parole." Here are excerpts:

It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.

Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole....

What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.

I was a bit surprised that SCOTUS took up the Miller case so soon after they decided Graham, and now I find myself a bit surprised that SCOTUS has not seemed much interested in the further development of this new line of Eighth Amendment jurisprudence. (Of course, the Montgomery case clarifying that Miller must be applied retroactively is a recent ruling in this arena and it (arguably) broke some new jursprudential ground.)

July 17, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered | Permalink | Comments (6)

PBS Frontline and the New York Times explore "Life on Parole"

The PBS series Frontline has this new documentary titled "Life on Parole," which will premiere at 10pm on Tuesday July 18 on most PBS stations (and the full film is available online now). Here is how the PBS site briefly describes the documentary:

With unique access, go inside an effort in Connecticut to change the way parole works and reduce the number of people returning to prison.  In collaboration with The New York Times, the film follows four former prisoners as they navigate the challenges of their first year on parole.

The New York Times series in this collaboration is titled "On the Outside," and it is described this way:

We followed 10 people after they were released from prison in a partnership with the PBS series "Frontline." These articles and videos look at the challenges that sent six of them back behind bars.

July 17, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (6)

Sunday, July 16, 2017

A midsummer review of the basics of state and federal marijuana reforms

Today's New York Times has this article providing a basic overview of state and federal marijuana reform discourse circa summer 2017. The article is headlined "States Keep Saying Yes to Marijuana Use. Now Comes the Federal No."  Here are excerpts:

In a national vote widely viewed as a victory for conservatives, last year’s elections also yielded a win for liberals in eight states that legalized marijuana for medical or recreational use. But the growing industry is facing a federal crackdown under Attorney General Jeff Sessions, who has compared cannabis to heroin.

A task force Mr. Sessions appointed to, in part, review links between violent crimes and marijuana is scheduled to release its findings by the end of the month. But he has already asked Senate leaders to roll back rules that block the Justice Department from bypassing state laws to enforce a federal ban on medical marijuana.

That has pitted the attorney general against members of Congress across the political spectrum — from Senator Rand Paul, Republican of Kentucky, to Senator Cory Booker, Democrat of New Jersey — who are determined to defend states’ rights and provide some certainty for the multibillion-dollar pot industry....

Around one-fifth of Americans now live in states where marijuana is legal for adult use, according to the Brookings Institution, and an estimated 200 million live in places where medicinal marijuana is legal.  Cannabis retailing has moved from street corners to state-of-the-art dispensaries and stores, with California entrepreneurs producing rose gold vaporizers and businesses in Colorado selling infused drinks.

Mr. Sessions is backed by a minority of Americans who view cannabis as a “gateway” drug that drives social problems, like the recent rise in opioid addiction.  “We love Jeff Sessions’s position on marijuana because he is thinking about it clearly,” said Scott Chipman, Southern California chairman for Citizens Against Legalizing Marijuana. He dismissed the idea of recreational drug use. “‘Recreational’ is a bike ride, a swim, going to the beach,” he said. “Using a drug to put your brain in an altered state is not recreation. That is self-destructive behavior and escapism.”...

Lawmakers who support legalizing marijuana contend that it leads to greater regulation, curbs the black market and stops money laundering.  They point to studies showing that the war on drugs, which began under President Richard M. Nixon, had disastrous impacts on national incarceration rates and racial divides....

Consumers spent $5.9 billion on legal cannabis in the United States last year, according to the Arcview Group, which studies and invests in the industry. That figure is expected to reach $19 billion by 2021....

But marijuana businesses are bracing for a possible clampdown. “People that were sort of on the fence — a family office, a high-net-worth individual thinking of privately financing a licensed opportunity — it has swayed them to go the other way and think: not just yet,” said Randy Maslow, a founder of iAnthus Capital Holdings. The public company raises money in Canada, where Prime Minister Justin Trudeau campaigned on a promise to legalize recreational use of marijuana.

Representative Earl Blumenauer, Democrat of Oregon and a co-chairman of the Congressional Cannabis Caucus, is urging marijuana businesses not to be “unduly concerned.”

“We have watched where the politicians have consistently failed to be able to fashion rational policy and show a little backbone,” he said. “This issue has been driven by the people.”

Though this Times article does not cover any new or notable marijuana reform ground, it provides an excuse for me to do a midsummer review of some recent posts from Marijuana Law, Policy & Reform.  Here is an abridged set of links to some summer postings: 

July 16, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

"Ministers of Justice and Mass Incarceration"

The title of this post is the title of this new paper available via SSRN authored by Lissa Griffin and Ellen Yaroshefsky. Here is the abstract:

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system.  As a consequence, there has been significant attention to the causes of mass incarceration.  These include the war on drugs and political decisions based on a “law and order” perspective.  Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas.  All of this occurred as crime rates dropped.

Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor.  It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence.  Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population.  That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions.  If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?

This Article examines the recognized role of the prosecutor as a “minister of justice,” and makes a range of suggested changes to the prosecution function.  These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.

July 16, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

DAG Rosenstein makes the case for his boss's new charging and sentencing directive to federal prosecutors

Deputy Attorney General Rod Rosenstein authored this notable op-ed appearing in the San Francisco Chronicle to explain and justify Attorney General Sessions' new memo to federal prosecutors concerning charging and  sentencing.  The piece was given the headline "Attorney General Jeff Sessions is serious about reducing crime," and here is its full text:

U.S. Attorney General Jeff Sessions recently revised the federal criminal charging policy. When federal prosecutors exercise their discretion to prosecute a case, they generally “should charge and pursue the most serious, readily provable offense” established by the evidence, he wrote in a May 10 memo. Prosecutors must use “good judgment” in determining “whether an exception may be justified” by the particular facts of the case. The Sessions memo reinstitutes a policy that existed for more than three decades. It was first implemented by President Jimmy Carter’s attorney general, Benjamin Civiletti.

From 2013 to 2017, however, the U.S. Department of Justice protected some criminals from mandatory minimum sentence laws enacted by Congress. During that time, unless cases satisfied criteria set by the attorney general, prosecutors were required to understate the quantity of drugs distributed by dealers and refrain from seeking sentence enhancements for repeat offenders. Beneficiaries of that policy were not obligated to accept responsibility or cooperate with authorities.

After that policy was adopted, the total number of drug dealers charged annually by federal prosecutors fell from nearly 30,000 — where it had stood for many years — to just 22,000. Meanwhile, drug-related violence has surged. There has been a significant spike in murders, including an 11 percent increase in 2015 alone.

Drug overdose deaths also have accelerated at a frightening and unprecedented pace. The annual toll of Americans killed by drug overdoses stood near 36,450 in 2008, with some 20,000 overdose deaths involving prescription drugs, according to the Centers for Disease Control and Prevention. Estimates show that the 2016 total was on the order of 60,000, making drug overdose the leading cause of death of Americans under age 50.

Officials in many cities are calling on federal prosecutors for help, and tough sentences are one of federal law enforcement’s most important tools. Used wisely, federal charges with stiff penalties enable U.S. attorneys to secure the cooperation of gang members, remove repeat offenders from the community and deter other criminals from taking their places.

In order to dismantle drug gangs that foment violence, federal authorities often pursue readily provable charges of drug distribution and conspiracy that carry stiff penalties. Lengthy sentences also yield collateral benefits. Many drug defendants have information about other criminals responsible for shootings and killings. The prospect of a substantial sentence reduction persuades many criminals to disregard the “no snitching” culture and help police catch other violent offenders.

Minor drug offenders rarely face federal prosecution, and offenders without serious criminal records usually can avoid mandatory penalties by truthfully identifying their co-conspirators. The Sessions policy is serious about crime. It does not aim to fill prisons with low-level drug offenders. It empowers prosecutors to help save lives.

Prior recent related posts: 

July 16, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, July 15, 2017

"The Political Economy of Mass Incarceration: An Analytical Model"

The title of this post is the title of this paper recently posted to SSRN authored by Peter Temin. Here is the abstract:

This paper presents a model of mass incarceration in the United States, which has the largest proportion of its population imprisoned among advanced countries.  The United States began to differ from other countries in the 1970s in response to changes in judicial policies.  Although the Kerner Commission recommended integrating the black community into the larger American community, judicial policies went in the opposite direction.  The model draws from several accounts of these changes and demonstrates that the United States has moved from one equilibrium position to another.  It is driven by two equations, one for incarceration and one for crime. It explains why the growth of prisoners has ceased in the last decade and what would be needed to return to the original equilibrium.

July 15, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable high-profile functionality of the dysfunctional Pennsylvania death penalty

Long-time readers surely recall some (of many) prior posts, including ones here and here, highlighting some (of many)  dysfunctional realities of the death penalty in Pennsylvania.  But this local article about horrible multiple murders getting national attention highlights how even a dysfunctional death penalty can still serve a significant function.  The article is headlined "Legal experts praise Bucks deal that led to murder confession," and here are excerpts:

The deal that spared Cosmo DiNardo the death penalty in exchange for a murder confession in a case that’s captivated the region and drawn national attention was lauded Friday by legal experts, who said the agreement was a swift and shrewd way to bring the gruesome case nearer to a close.

Cosmo DiNardo, 20, confessed to participating in the killings of four men. DiNardo also agreed to tell investigators where to find the bodies and lead them to an accomplice.  In exchange for the cooperation, his defense lawyer Paul Lang said, prosecutors agreed not to seek the death penalty.

DiNardo’s four victims, young men from Bucks and Montgomery Counties, disappeared last week.  Their families’ fears were confirmed when human remains were discovered in a 12-foot grave on a farm owned by DiNardo’s parents.  On Friday, DiNardo was charged with murder and related offenses.  Authorities also arrested his cousin and alleged accomplice, Sean Kratz, 20, on the same charges.  And also Friday, they discovered the body of one of the missing men, Jimi Taro Patrick, 19, on the farm.  The remains of Dean A. Finocchiaro, 19; Thomas C. Meo, 21; and Mark R. Sturgis, 22, had been discovered elsewhere on the sprawling property Wednesday.

Bucks County District Attorney Matthew D. Weintraub on Friday credited DiNardo’s confession with implicating Kratz and leading investigators to Patrick’s body, which had been buried separately from the others.  “I’d like to think he wanted to help us get these boys home,” he said, describing the cooperation agreement with DiNardo as critical to solving the case.

In interviews Friday, several legal experts agreed.  “It was absolutely the right thing to do,” Jack McMahon, a former prosecutor who is now a prominent defense lawyer, said of the deal.  “I think both sides did the right thing.”  With evidence mounting in a case this serious, McMahon said, “the defense probably realized that the evidence against his client was pretty overwhelming.  He had only one chip to play, and he used it to leverage for a life sentence.”

Marc Bookman, a former public defender who is director of the Atlantic Center for Capital Representation in Center City, said the agreement had clear benefits for DiNardo and for prosecutors.  “In a case like this, there’s a give and take,” he said.  For the defense, Bookman said, “you’ve got four bodies.  Any defense lawyer is thinking, ‘There’s no real defense to the killing of four people.’ There are defenses to a murder case, but it’s difficult to conceive of a legitimate defense to four bodies buried 12 feet in the ground.”

The severity of the crime made it a clear candidate for a death penalty prosecution, legal experts agreed, giving the prosecution leverage and the defense reason to seek a deal.  “The defense is giving the prosecutor something compelling,” Bookman said.  “He said he would direct them to where the bodies are. You’ve got four grieving families who desperately want closure, however sad that closure might be.  And he’s asking for something in exchange.”

For prosecutors, the threat of life on death row — if not actual execution in a state with a moratorium on the death penalty — upon conviction proved persuasive.  “It’s good to have the death penalty for cases like this — whether you agree with it or not,” said former Philadelphia District Attorney Lynne M. Abraham, whose tenure was marked by an aggressive willingness to pursue the death penalty in murder cases.  “The prosecutor had a bargaining chip, and the defense attorney used it to bargain away [the possibility of] being on death row for 25 to 40 years.”...

The deal DiNardo’s lawyers reached with prosecutors spares the families of the four victims a painful trial and saves taxpayers the expense.  In addition, Abraham said, it saves “hundreds of thousands, if not millions” of dollars spent on the appeals offered to all defendants convicted in capital cases.  Those often go on for decades.

Dennis J. Cogan, a former prosecutor and veteran defense lawyer, called the agreement a “win-win.” Without the confession, he said, the crime might have proved a “tough case” for prosecutors.  With the deal Weintraub struck with DiNardo’s lawyers, Cogan said, “they get the guy, they get the accomplice, and hopefully they bring closure for the families.”

July 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Friday, July 14, 2017

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

July 14, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Murder Is Up Again In 2017, But Not As Much As Last Year"

Asher-murder-0710-1The title of this post is the title of this notable new analysis of big city murder data authored by Jeff Asher over at FiveThirtyEight.  Here is how the posting starts and ends (with footnotes/links omitted):

Big U.S. cities1 saw another increase in murders in the first half of 2017, likely putting them on track for a third straight year of rising totals after murder rates reached historic lows in 2014.  So far, however, this year’s increase is considerably smaller than it was in each of the past two years; the big-city numbers are consistent with only a modest rise in murders nationwide.  Overall, if recent numbers hold, the nation’s murder rate will likely rise but remain low relative to where it was from the late 1960s through the 1990s.

The FBI collects national data on murders and other major crimes, but it releases them after a significant lag.  The most recent full year for which official data is available is 2015, when murders rose at their fastest pace in a quarter century.  Official 2016 data won’t be available until the fall, but murder almost certainly rose last year too; in January, I found that big cities experienced a roughly 11 percent increase in murders in 2016, which past patterns suggest is consistent with about an 8 percent rise in murder overall.

In order to gauge changes in the prevalence of murder in big cities in 2017, I collected year-to-date murder counts for 2017 and 2016 in 68 of the country’s big cities, using a mixture of data from the cities themselves and from media reports.  Data from 63 of the cities included murders committed through at least the end of May, and 50 cities provided data covering the month of June.  These big cities have had roughly 4 percent more murders so far in 2017 than they did at the same point in 2016.

Only a handful of cities are seeing large increases or decreases in murder this year, which is what we would expect to see given a small overall rise in the sample....

Big cities tend to exaggerate national murder trends, both up and down — so a large rise in big-city murder usually corresponds with a slightly smaller national increase.  If murder rose roughly 8 percent nationally in 2016 (as my January estimate suggests) and is set to rise a few percentage points in 2017, then the nation’s murder rate in 2017 will be roughly the same as it was in 2008.  That’s still more than 40 percent lower than the country’s murder rate in the early 1990s (but roughly 27 percent higher than it was in 2014).

Ultimately, this year’s trend is similar to last year’s in that more big cities are seeing a rise in the number of murders than are seeing a decline.  There are still six months left in 2017, and while anything could happen, the most likely outcome is that — although this year’s rise will likely be smaller than last year’s — the country will see murders increase for a third straight year.

As regular readers know, Attorney General Sessions has made much of rising crime rates in his criticisms of Obama era criminal justice reforms and in his defense of his recent decision to toughen federal prosecutorial charging and sentencing practices. This kind of data showing still further (though smaller) increases in murders in 2017 on the heels of significant increases in 2015 and 2016 will likely only reinforce the views of AG Sessions and others in the Trump Administration that "tough and tougher" federal sentencing policies and practices are needed to enhance public safety.

July 14, 2017 in Criminal justice in the Trump Administration, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Thursday, July 13, 2017

Urban Institute releases "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons"

Logo-simpleThis morning the Urban Institute released online here a big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." As explained in an email I received, this "online feature examines the causes and consequences of rising time served in America’s prisons [t]hrough visualizations, analysis of trends and demographics, and stories told by people who have served long prison terms." An executive summary can be found at this link, and here are excerpts from it:

People are spending more time in prison, and the longest prison terms are getting longer.  Since 2000, average time served has risen in all 44 states that reported complete data to the National Corrections Reporting Program.  In states with more extensive data, we can trace the rise back to the 1980s and 1990s. In nearly half the states we looked at, the average length of the top 10 percent of prison terms increased by more than five years between 2000 and 2014.

The increase in time served has been sharpest among people convicted of violent offenses.  These changes have an outsized effect on prison populations because people convicted of violent offenses make up more than half the people in state prisons and the majority of people with long terms.

Longer terms are growing in number and as a share of the prison population.  In 35 states, at least 1 in 10 people in prison have been there for a decade or more.  This is even higher — nearly 1 in 4 people — in states like California and Michigan.  In at least 11 states, the number of people who have served at least a decade has more than doubled since 2000.

These trends aren’t accidental, and that they vary so much across states suggests that the growth in time served is driven by state-level decisionmaking.  States grappling with expanding prison populations must include those serving the longest prison terms in their efforts to curb mass incarceration.

Incarceration affects some people and communities more than others, and these patterns are often more pronounced among those who spend the most time in prison.  In 35 of the 44 states we looked at, racial disparities in prisons were starkest among people serving the longest 10 percent of terms.  In recent years, racial disparities have decreased among people serving less than 10 years, but 18 states actually saw an increase in disparities among people serving longer terms.

Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.  Thousands have been in prison for more than half their lives.  One in five people in prison for at least 10 years is a black man incarcerated before age 25.

A growing share of women in prison have served more than 10 years.  In Michigan, for example, 8 percent of women in prison had served at least a decade as of 2000; by 2013, that number was 13 percent.  In Wisconsin, this figure rose from 1.8 to 6.5 percent over the same period.  In light of this trend, more research is needed to understand how women are uniquely affected by long-term incarceration.

More than one in three people serving the longest prison terms is at least 55 years old.  More people serving longer terms means that more people are growing old in prison, yet prisons are typically ill-equipped to address the needs of the elderly and disabled.

July 13, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Spotlighting and unpacking the modern decline in death sentences

170711_TE_death-penalty-graph.png.CROP.promovar-mediumlargeBrandon Garrett has this new Slate commentary under the full headline "Why Jurors Are Rejecting the Death Penalty: There used to be 300 death sentences each year in the United States. Last year, there were just 30." Here are excerpts:

Prosecutors in Wake County, North Carolina, have sought the death penalty in eight cases over the past decade. Each time, jurors have rejected the sentence, most recently in March.  The most recent time Wake County jurors imposed a death sentence was a decade ago....

Capital punishment has now been outlawed in 19 states. In the places where it remains legal, jurors are increasingly reluctant to impose it.  Just 30 people were sentenced to death in the United States last year, and only 27 counties out of more than 3,000 nationwide sent anyone to death row.  In the mid-1990s, by contrast, more than 300 people were sentenced to death, with capital punishment being undertaken in as many as 200 counties each year.

Jurors have even started to reject the death penalty in Texas, which has sentenced more people to death than any other state in modern times.  Texas prosecutors are seeking the death penalty less often, and when they do, they’re frequently failing to persuade juries to impose it.  In 15 capital trials in the state since 2015, just eight have resulted in death sentences.

So, what has changed the minds of jurors?  It’s not that they’re morally opposed to the death penalty.  In fact, jurors who object on principle can be disqualified from serving in capital trials.  These are people who are open to imposing the ultimate punishment but decide to reject it after hearing a convicted murderer’s life story, including evidence of mental health issues, childhood abuse, and other mitigating circumstances....

Another reason for the decline in death sentences is that murders have steadily declined across the country, beginning in the mid-’90s.  (There has, however, been a recent spike in the murder rate in certain large cities.)  When my co-authors and I analyzed death sentencing data by county from 1990 through 2016, we found that a drop in the murder rate was strongly associated with the decline in death sentencing.

But death sentences have fallen far faster than murders.  One reason may be the growth in adequately resourced defense lawyers.  In general, states that have statewide offices to represent defendants at capital trials, as opposed to locally appointed lawyers, have experienced far greater declines in death sentencing.  Those offices have the resources to hire experts who can present mental health evidence and explain the defendant’s social history....

Our research also shows there is a strong “muscle memory” effect in death sentencing.  Counties that have issued a death sentence in the past are far more likely to obtain more.  What explains this substantial effect?  Prosecutors may get in the habit of seeking the death penalty, even when neighboring counties do not.  Perhaps losing a capital trial can put a damper on that enthusiasm.  Generally, once that muscle memory fades, counties do not get it back. Indeed, the counties that started out with the most death sentences have experienced the biggest declines over the past 15 years.  For example, in Harris County, Texas, where in the mid-1990s prosecutors led the country by securing 15 or more death sentences per year, there were no death sentences at all in 2015 or 2016.

As the death penalty fades, jurors may become more and more skeptical of its utility.  Last year, psychologists Daniel Krauss and Nicholas Scurich joined me in surveying nearly 500 people summoned for jury duty in Orange County, California, an area that regularly imposes death sentences.  We found that one-third of jurors — a surprisingly high share in that fairly conservative county — would not qualify to serve on a capital jury because they opposed the death penalty on principle.  About one-quarter — a separate group from the one-third of jurors described above — said they would not convict someone of capital murder if that meant the defendant would be executed.  Most strikingly, two-thirds of all jurors we surveyed said the fact that there had not been an execution in California in a decade made them less likely to sentence a person to death.

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

Tuesday, July 11, 2017

US Sentencing Commission releases new overview of mandatory minimums in federal system

As reported in this official press release, the "United States Sentencing Commission today released a new publication — An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview) — that examines the use of federal mandatory minimum penalties and the impact of those penalties on the federal prison population." Here is more from the press release about this new publication and its findings:

The new publication updates much of the data contained in its 2011 Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System and compiles data through 2016, the most recent full fiscal year for which federal sentencing data is available.

Judge William H. Pryor, Jr., Acting Chair of the Commission stated, "This publication examines the latest data about the use of mandatory minimum sentences in the federal criminal justice system.  When Congress created the Commission, Congress empowered it to serve 'as a clearinghouse and information center' about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies.  See 28 U.S.C. § 995(a)(12)(A). The Commission has published this report to fulfill that Congressional mandate."

Among the key data findings in the publication are:

  • The average sentence length for federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 was 110 months of prison, nearly four times the average sentence (28 months) for offenders whose offense did not carry a mandatory minimum.

  • Slightly more than half (55.7%) of federal inmates in custody as of September 30, 2016 were convicted of an offense carrying a mandatory minimum.

  • Over one-third (38.7%) of federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016 received relief from the mandatory minimum at sentencing, which is a decrease from 46.7 percent in fiscal year 2010.

  • Hispanic offenders continued to represent the largest group of federal offenders (40.4%) convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016.

  • White offenders had the longest average sentence (127 months) among federal offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2016, which is a shift from fiscal year 2010 when Black offenders convicted of an offense carrying a mandatory minimum penalty had the longest average sentence (127 months).

  • While Black offenders convicted of an offense carrying a mandatory minimum penalty continued to receive relief from the mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed from a difference of 11.6 percent in fiscal year 2010 to 3.2 percent in fiscal year 2016.

The 2017 Overview is part of a multi-year study included in the Commission’s policy priorities over the past several amendment cycles and is intended to be the first in a series of reports on mandatory minimum penalties.  Continuation of the study is listed as a tentative policy priority for the amendment year ending May 1, 2018.  The Commission will accept public comment on proposed priorities through July 31, 2017.

The full USSC report, which runs 89 pages, is available at this link. I hope to find some time in the coming weeks to highlights some additional data from this latest review of the latest mandatory minimum realities.

July 11, 2017 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes | Permalink | Comments (2)

"It’s time to refocus the punishment paradigm"

The title of this post is the headline of this notable new commentary in The Hill authored by Adam Gelb and Barbara Broderick. Here are excerpts:

[O]ne of the most powerful findings in criminology is that rewards are better shapers of behavior than punishments. But that’s not typically how it works for the 4.7 million Americans on probation or parole, the community supervision programs founded for the purpose of redirecting troubled lives.

Instead, supervision has become mostly about enforcing the rules — report to your probation officer, attend treatment, etc. — and locking people up when they don’t obey.  Corrections professionals call it “Trail ’em, nail ’em, and jail ’em.”

People who commit crimes need to be held accountable for their actions, of course, but the criminal justice system serves a much wider purpose: protecting public safety.  In order to cut crime and recidivism rates — and rein in corrections spending — we need to harness what the research says about changing behavior.  That means refocusing the punishment model and making the primary mission of supervision to promote success, not just punish failure.

This fundamental transformation is one of a set of proposed paradigm shifts in community corrections highlighted in a report set to be released later this month from Harvard’s Kennedy School of Government and the National Institute of Justice — the product of three years of discussions among leading experts in criminal justice, of which we were a part.

Our group sought to identify strategies for probation, parole, and other programs that can both promote public safety and build trust between communities and justice institutions.  Other shifts include moving from mass to targeted supervision, concentrating resources on more serious offenders, and swapping intuition-based policies for evidence-based practices (such as focusing treatment on changing characteristics that contribute to offending, like poor impulse control, and avoiding those that don’t.)

Making supervision more reward-based holds great potential.  A probation officer’s job has traditionally been defined as reactive: wait until something bad happens and then impose a sanction, often a return to prison. This not only costs state taxpayers an average of $30,000 per year for each inmate, it also ignores a good part of what we know works best when it comes to steering ex-offenders away from continued criminality....

Drug courts have helped pioneer reward-based practices by holding graduation ceremonies to commemorate program completion.  Many graduates say it’s the first time in their lives that they’ve achieved something and been publicly acknowledged for it, and studies suggest that this type of recognition inspires them to persist in their sobriety.

Such ceremonies shouldn’t be limited to specialized courts or programs, which handle only a small fraction of the millions of people on community supervision.  They should be expanded and accompanied by other rewards for progress along the way.  Local communities and businesses can chip in with small gift cards and other tokens of recognition.

At least 15 states have passed laws that establish “earned compliance credits,” which typically permit offenders to earn a month off of their supervision terms for each month that they’re in compliance.  This tactic could be expanded and used in new ways.  For instance, for each month they obey the rules, parolees or probationers could have a reduction or elimination of the monthly fee (typically about $50) that they’re required to pay.

Another potentially promising method would capture the power of social media to push positive messages to probationers and parolees when they do well.  Pass a drug test, complete a phase of treatment, or get a job — and you’d receive a batch of digital pats on the back from your treatment team and circle of family and friends.

It’s human instinct to punish wrongdoing, and accountability won’t — and shouldn’t — vanish from the criminal justice system.  We can’t just reward people when they do right but fail to respond when they do wrong. But by shifting the emphasis from retribution to rewards, we can make a greater impact on behavior.

July 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Latest comments by AG Sessions on drug problems and federal prosecutorial policies

Attorney General Jeff Sessions spoke today at the 30th DARE Training Conference, and the setting not surprisingly prompted him to talk about drug issues and federal prosecutorial policies. His official remarks are available at this link, and here are excerpts:

Drug abuse has become an epidemic in this country today, taking an unprecedented number of American lives.  For Americans under the age of 50, drug overdoses are now the leading cause of death. In 2015, more than 52,000 Americans lost their lives to drug overdoses — 1,000 every week.  More died of drug overdoses in 2015 than died from car crashes or died at the height of the AIDS epidemic.

And the numbers we have for 2016 show another increase — a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug overdoses last year.  That will be the highest drug death toll and the fastest increase in the death toll in American history.  And every day, more than 5,000 Americans abuse painkillers for the first time.

This epidemic is only growing.  It’s only getting worse.  It’s being driven primarily by opioids — prescription drugs, heroin, and synthetic drugs like fentanyl.  Last year, there were 1.3 million hospital visits in the United States because of these drugs.  According to the Centers for Disease Control and Prevention, heroin use has doubled in the last decade among young people 18 to 25....

Now, this is not this country’s first drug abuse crisis.  In the 1980s, when I was a federal prosecutor, we confronted skyrocketing drug abuse rates across the country and we were successful.  In 1980, half of our high school seniors admitted they had used an illegal drug sometime in that year.  But through enforcing our laws and by developing effective prevention strategies, we steadily brought those rates down.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles.  I believe that DARE was instrumental to our success by educating children on the dangers of drug use.  I firmly believe that you have saved lives. And I want to say thank you for that.  Whenever I ask adults around age 30 about prevention, they always mention the DARE program.  Your efforts work.  Lives and futures are saved.

Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse.  They say marijuana use can prevent addiction.  They say the answer is only treatment.  They say don’t talk about enforcement.  To me, that just doesn’t make any sense.  In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.

Ignoring the problem — or the seriousness of the problem — won’t make it go away.  Prevention — through educating people about the danger of drugs — is ultimately how we’re going to end the drug epidemic for the long term. Treatment is important, but treatment often comes too late.  By then, people have already suffered from the effects of drugs.  Then their struggle to overcome addiction can be a long process — and it can fail.  I have seen families spend all their savings and retirement money on treatment programs for their children — just to see these programs fail.

Now, law enforcement is prevention.  And at the Department of Justice, we are working keep drugs out of our country to reduce availability, to drive up its price, and to reduce its purity and addictiveness.  We know drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.  There is no doubt that violence tends to rise with increased drug dealing.

Under the previous administration, the Department of Justice told federal prosecutors not to include in charging documents the full amount of drugs being dealt when the actual amount would trigger a mandatory minimum sentence.  Prosecutors were required to leave out true facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb “mass incarceration” of “low-level offenders”, but in reality it covered offenders apprehended with large quantities of dangerous drugs.

What was the result?  It was exactly what you would think: sentences went down and crime went up.  Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016.  Violent crime — which had been decreasing for two decades — suddenly went up again.  Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

In May, after study and discussion with criminal justice experts, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that said we were going to trust our prosecutors again and allow them to honestly charge offenses as Congress intended.  This simple two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case, and allows them to exercise discretion where a strict application of the law would result in an injustice.  Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate.  That is the way good law enforcement has always worked.

But you know it’s not our privileged communities that suffer the most from crime and violence.  Minority communities are disproportionately impacted by violent drug trafficking and addiction.  Poor neighborhoods are too often ignored in these conversations.

Regardless of their level of wealth or their race, every American has the right to live in a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American community is ravaged by crime and violence at the hands of drug traffickers.  We can never yield sovereignty over a single neighborhood, city block, or street corner to drug traffickers....

Experience has shown, sadly, that it is not enough that dangerous drugs are illegal.  We also have to make them unacceptable.  We have to create a cultural climate that is hostile to drug abuse. In recent years, government officials were sending mixed messages about drugs.  We need to send a clear message.  We must have Drug Abuse Resistance Education.  DARE is the best remembered anti-drug program. I am proud of your work.  It has played a key role in saving thousands of lives and futures.

So please — continue to let your voices be heard.  I promise you that I will let my voice be heard.  Our young people must understand that drugs are dangerous; that drugs will destroy their lives, or worse yet, end them.  Let’s get the truth out there and prevent new addictions and new tragedies — and make all of our communities safer.  Thank you.

July 11, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Punishment and the Burden of Proof"

The title of this post is the title of this new paper available via SSRN authored by Michael Louis Corrado. Here is the abstract:

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility.  The argument I make in this paper, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof.  Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt.  That same objection holds as well against proposals of non-retributive punishment: the adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures.

The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

July 11, 2017 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, July 10, 2017

Drug Policy Alliance issues big new report calling for drug decriminalization

Download (2)This new press release reports on the latest call by the Drug Policy Alliance (DPA) for drug decriminalization in the US.  The DPA has this new report titled "It's Time for the U.S. to Decriminalize Drug Use and Possession," and the press release discusses its work with other organization to push this agenda forward.  Here is start and end of the DPA report's executive summary:

By any measure and every metric, the U.S. war on drugs — a constellation of laws and policies that seeks to prevent and control the use and sale of drugs primarily through punishment and coercion – has been a colossal failure with tragic results. Indeed, federal and state policies that are designed to be “tough” on people who use and sell drugs have helped over-fill our jails and prisons, permanently branded millions of people as “criminals”, and exacerbated drug-related death, disease and suffering — all while failing at their stated goal of reducing problematic drug use.

This report offers a roadmap for how to begin to unwind our failed drug war. It focuses on one practical step that can and should be taken to avoid many of the harms that flow from punitive prohibitionist drug laws and to promote proven, effective health-based interventions.

Drug decriminalization is a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration.  Decades of evidence has clearly demonstrated that decriminalization is a sensible path forward that would reap vast human and fiscal benefits, while protecting families and communities.

Drug decriminalization is defined here as the elimination of criminal penalties for drug use and possession, as well as the elimination of criminal penalties for the possession of equipment used for the purpose of introducing drugs into the human body, such as syringes.  Throughout this report, we will use the phrase “drug possession” to include drug possession, drug use, and possession of paraphernalia used for the purpose of introducing drugs into the human body.

Ideally, drug decriminalization entails the elimination of all punitive, abstinence-based, coercive approaches to drug use; however, for purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts do not eliminate all forms of coercion entirely.  Drug decriminalization also ideally entails the removal of criminal penalties for low-level sales, given that the line between seller and user is often blurred (this subject and the broader issue of people who sell drugs will be addressed in a subsequent DPA report).

This report is the product of a comprehensive review of the public health and criminology literature, an analysis of drug policies in the U.S. and abroad, and input from experts in the fields of drug policy and criminal justice.  By highlighting the benefits of eliminating criminal penalties for drug use and possession, we seek to provide policymakers, community leaders and advocates with evidence-based options for a new approach....

This report makes the following recommendations for local, state and federal policymakers in the U.S.:

• Congress and U.S. states should eliminate federal and state criminal penalties and collateral sanctions for drug use, drug possession for personal use, and possession of paraphernalia intended for consuming drugs.

• Congress should amend federal law to de-schedule marijuana and remove it from the federal Controlled Substances Act.

• Administrative penalties – such as civil asset forfeiture, administrative detention, driver’s license suspension (absent impairment), excessive fines, and parental termination or child welfare interventions (absent harm to children) – run counter to the intent of a decriminalization policy and should not be imposed.

• Decriminalization policies — like other drug policies — generally function far more effectively when accompanied by robust and diverse harm reduction and treatment-on-demand programs, including medication-assisted treatment.

• Local and state governments should adopt pre-booking diversion and 911 Good Samaritan policies to prioritize public health over punishment and incarceration.

July 10, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Sunday, July 9, 2017

DPIC provides mid-year review of of 2017 death penalty developments

I just noticed that the Death Penalty Information Center recently provided this effective review of 2017 death penalty developments to date. Here are the details with links from the original:

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States.  As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled.  By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued.

Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low.  However, even with the spate of four executions carried out in Arkansas from April 20-27 — that state's first executions since 2005 — there will likely be fewer executions in 2017 than in any other year since 1990.  

New death sentences also remain near historically low levels.  DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional.

Three people have been exonerated from death row in 2017 — Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida — bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness.  A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases.  In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

Other states that have carried out executions so far in 2017 are Texas (4), Alabama (2), Georgia (1), Missouri (1), and Virginia (1).

July 9, 2017 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (30)

"Death Row Dogs, Hard Time Prisoners, and Creative Rehabilitation Strategies: Prisoner-Dog Training Programs"

The title of this post is the title of this recently published article authored by Paul Larkin. Here is the abstract:

More and more prisons have witnessed the success of Prisoner-Dog Training Programs (PDPs) in the last few years.  PDPs entail a prisoner training an animal (usually a dog) to be a service animal for the disabled or a well-behaved household pet.  PDPs at state and federal prisons have turned out to be a win-win-win.  The animals involved in the program are typically those at risk of being euthanized, giving those animals a second chance at life; the community benefits because people adopt well-behaved and trained animals; and the prisoner-trainers learn what it means to contribute to society in a material way, to develop emotional connections, and to care for others.  At first glance, these programs seem perfect—which begs the question: Why are they not in every prison?

This article examines PDPs and the success of those programs in the case studies that have been conducted.  The Article suggests that in order for more successful PDPs to be launched, more data needs to be collected.  In analyzing PDPs, this Article looks at the history of criminal punishment through the lens of rehabilitation versus retribution, then proceeds to an overview of PDPs and their promising initial data.  Finally, this Article discusses the need for further examination of PDPs and their effectiveness, as well as possible mechanisms that could be used to expand their uses. Ultimately, this Article encourages the Department of Justice and Congress to lend greater support to PDPs in federal and state prisons. 

July 9, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Saturday, July 8, 2017

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in "the view of the United States, the petition for a writ of certiorari should be denied." The discussion section of the brief begins this way:

Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States.  After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes.  While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith.  Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive.  And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features.  Accordingly, to the extent the courts of appeals have reached different outcomes in state sexoffender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework.  Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review.  That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision.  And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law.  Further review is therefore not warranted.

July 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

"Criminal justice reform starts before the trial and sentence"

The title of this post is the title of this new commentary at The Hill authored by Marc Levin and Ed Chung. Here are excerpts (with links from the original): 

Recent media stories have speculated on the future of federal efforts to reform the criminal justice system. Much of the discussion surrounds the possibility of rekindling bipartisan sentencing and corrections reform legislation that was on the cusp of being enacted in the previous Congress.

While comprehensive reforms to lower federal mandatory minimum sentences remain aspirational, there are other policies on which the right and left agree that could have as much, if not more, impact in reducing the nation’s incarcerated population while maintaining public safety. 

Every day, approximately 450,000 people who have not been convicted of a crime are currently behind bars while they await adjudication of their case.  This is more than double the number of people in federal prison and two and half times the total jail population in 1980.  According to a recent analysis by the Prison Policy Initiative, “99 percent of the growth in jails over the last 15 years has been a result of increases in the pre-trial population.”  This increase was not due to a more criminalized or violent society but rather stemmed from discretionary criminal justice policies that increasingly conditioned release from jail on whether they could pay for bail. 

Money bail systems, however, are neither the most effective nor fairest way to achieve the goals of the justice system prior to trial.  For those whom a court determines to be a danger to society, allowing them to pay for their release seems like an illogical remedy where a rich dangerous person is freed but a poor dangerous person remains in jail. And, to ensure a person returns for court appearances, more effective methods have developed in recent years that combine an objective assessment of a person’s risks with appropriate human supervision and electronic monitoring.

The harms and inequities associated with money bail systems — especially when it comes to nonviolent, low-risk poor defendants — are well documented.  According to an analysis by the Arnold Foundation, keeping low-risk defendants in jail for even two or three days increases the likelihood that they will commit a new crime by 40 percent.  The impact also is felt disproportionately by those who cannot pay for even relatively modest bail and thus remain locked up.

The movement to reform bail systems has taken root in a small but growing number of both conservative and progressive states.  Connecticut last month enacted a statute that bars the imposition of financial conditions for pretrial release for most misdemeanors.  Earlier this year, New Jersey passed legislation that eliminated bail for minor crimes and instituted the use of a risk assessment tool to help courts determine pretrial supervision conditions.  Kentucky, which instituted the same risk assessment tool in 2013, will now automatically release people determined to be low-risk if they meet certain criteria.  And Washington, D.C., releases 90 percent of those arrested with conditions to report to a pretrial agency and comply with drug testing and other requirements. 

While state and local policy change is the primary means of achieving bail reform, given that pretrial detention implicates the guarantees of equal protection and due process found in the U.S. Constitution, the federal government can play a collaborative role, even if most of the people in jail awaiting trial are in local facilities.  Through its technical assistance efforts, the Department of Justice (DOJ) shares advancements made in a small number of states with a national audience and provides valuable data that reveals the impact of pretrial practices across the nation. From issuing statements of interest on bail in pending federal litigation to providing guidance on the proper use of risk assessment instruments, the DOJ must remain committed to pretrial policies that prioritize public safety over a person’s ability to pay.

Congress also has an important voice that can exemplify the bipartisan support for bail reform across the country.  The legislative branch’s bully pulpit is especially effective when emphasizing points of agreement across the political spectrum....

There is still much work to be done to reform the criminal justice system.  Fortunately, this remains a priority that transcends partisanship, even in the current political climate. It is time for our national leaders to act on the consensus developed among states, local communities, advocates, and think tanks representing different ideological perspectives like ours. 

July 8, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, July 7, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Texas continues to demonstrate how state "smart on crime" reforms can lead to less imprisonment and less crime

This Dallas Morning News article, headlined "With crime, incarceration rates falling, Texas closes record number of lock-ups," highlights why the Lone Star state should be viewed as a shining star for anyone eager to see states find paths to having less crime and less incarceration.  Here are excerpts:

Texas will shutter more prisons this year than it has in any single year in history, a response to the state's tight budget and shrinking inmate population.  In the state's two-year budget, which lawmakers approved in May, the Texas Department of Criminal Justice was ordered to close four prison facilities by Sept. 1.  When all four are closed, tough-on-crime Texas will have shuttered eight prisons in just six years.

Criminal justice reform advocates, agency officials and lawmakers say the closings are possible because of a combination of factors, including falling crime rates and legislative efforts to reduce the number of people who spend time behind bars.  "This is something we have done incrementally over the last decade," said Derek Cohen, deputy director at the Center for Effective Justice at the right-leaning Texas Public Policy Foundation.  "We're not any less safe publicly for that."

The drop in Texas' prison population began around 2007, when lawmakers were faced with an expensive decision.  The state had spent decades and millions of dollars building hulking prison edifices across rural Texas.  Tens of thousands of cells were quickly filling, and without changing the way Texas operated its criminal justice system, the state would soon be forced to spend millions more to house a burgeoning inmate population.

A state known for its lock-'em-up-and-throw-away-the-key approach to crime began to shift its approach.  Instead of erecting more massive prisons, lawmakers invested in diversion programs to help troubled Texans get back on track and avoid incarceration.  They spent more on initiatives to provide services to people whose mental illnesses landed them crosswise with the law.  Lawmakers in 2015 updated a decades-old property crime punishment scheme that had resulted in felony punishments for thieves who had stolen penny-ante items.  "What we saw was almost within 18 months, just an immediate decrease in the number of people sent to state jail on property offenses," said Doug Smith, a policy analyst with the Texas Criminal Justice Coalition.

At the same time, crime rates fell across the state.  Texas Department of Public Safety data shows that crime rates have fallen each year since at least 2012.  The overall crime rate in Texas fell nearly 6 percent from 2013 to 2014.  And it dropped another 4.7 percent the following year.

Texas closed its first prison in 2011 after much hand-wringing.  The Central Unit was a 79-year-old, sprawling behemoth on valuable land in the growing Houston suburb of Sugar Land. The prison population had begun to fall already, dropping 8 percent from 2004 to 2011. Legislators were facing a budget shortfall of up to $27 billion, and closing the Central Unit could save them about $50 million over two years.  For the first time in Texas history, it made political and fiscal sense to close a prison. It turned out, lawmakers were just getting started.

Two years later, they shuttered the Jesse R. Dawson State Jail in Dallas and a pre-parole unit in Mineral Wells.  Earlier this year, the criminal justice department closed a privately operated intermediate sanctions facility in Houston that was right next to Minute Maid Park.  As the closings continued, inmate population continued to drop, from 156,000 in 2011 to about 146,000 today, according to department spokesman Jason Clark....

It's unclear, though, whether the shuttering trend will continue in Texas.  Lawmakers this year did not approve any changes that criminal justice reform advocates said would keep the prison population on the decline.  Among the measures lawmakers rejected were proposals to reduce drug offense penalties and to keep 17-year-olds in the juvenile justice system, as most states do, instead of sending them to adult prisons.

July 7, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Thursday, July 6, 2017

Virginia Gov decides claim of delusional disorder does not justify halting scheduled execution of double murderer

As noted in this prior post, tonight's planned execution in Virginia of William Morva has brought renewed attention to the intersection of mental illness and capital punishment. That attention likely played a role in this decision by Virginia Governor Terry McAuliffe to release this statement today explaining his decision not to prevent Morva's execution. Here is how the statement starts and ends:

Over the past several weeks, my staff and I have carefully considered the petition for clemency submitted by William Morva, who was tried, convicted, and sentenced to death for the murder of Montgomery County Deputy Sheriff Corporal Eric Sutphin and hospital security guard Derrick McFarland.  We have also reviewed extensive communications from family members of the victims, law enforcement officials, community leaders, and concerned observers from all over the world.

Consistent with the three previous petitions for commutation of a capital sentence that I have reviewed, I have evaluated Mr. Morva’s submission for evidence that he has been subjected to a miscarriage of justice at any phase of his trial that could have impacted the verdict or his sentence.  After extensive review and deliberation, I do not find sufficient cause in Mr. Morva’s petition or case records to justify overturning the will of the jury that convicted and sentenced him.

There is no question that, in a carefully orchestrated effort to escape custody while awaiting trial for burglary, robbery and firearms charges, Mr. Morva brutally attacked a deputy sheriff, stole his firearm and used it to murder Mr. McFarland, who was unarmed and had his hands raised as he was shot in the face from a distance of two feet.  The next day, Mr. Morva murdered Corporal Sutphin by shooting him in the back of the head.

Mr. Morva’s petition for clemency states that he suffers from a delusional disorder that rendered him unable to understand the consequences of his actions.

That diagnosis is inconsistent with the findings of the three licensed mental health professionals appointed by the trial court, including an expert psychiatrist who is Board-Certified in both Psychiatry and Forensic Psychiatry.  Two of these three experts were called by Mr. Morva’s own legal team.  These experts thoroughly evaluated Mr. Morva and testified to the jury that, while he may have personality disorders, he did not suffer from any condition that would have prevented him from committing these acts consciously and fully understanding their consequences....

I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth.  In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.

UPDATE: This Reuters article suggests that Morva's execution was completed without difficulty Thursday night.

July 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (11)

"The Wireless Prison: How Colorado’s tablet computer program misses opportunities and monetizes the poor"

Tablet_bannerThe title of this post is the title of this lengthy new Prison Policy Initiative posting about an important new part of the prison experience in a growing number of jurisdictions.  I recommend the full piece, and here are excerpts from how it starts and concludes (with links from the original):

A recent Denver Post article reports that the Colorado state prison system has awarded a contract to prison communications giant GTL (formerly Global Tel*Link) for a tablet program that will eventually be deployed in all the state’s prisons.

The Colorado Department of Corrections (DOC) is somewhat of an early adopter of emerging communications technology.  For several years it has offered electronic messaging, an email-like service that allows people in prison to send and receive messages using a proprietary, fee-based platform operated by a contractor.  Colorado DOC’s electronic messaging program isn’t perfect, but its rollout was notable for giving people a new communication option.  The tablet program, on the other hand, foreshadows a potential new paradigm in corrections, shifting numerous communications, educational, and recreational functions to a for-profit contractor; and, at the same time, making incarcerated people and their families pay for services, some of which are now commonly funded by the state.

What makes the Colorado/GTL contract especially frustrating is that it could have been an innovative step toward providing incarcerated people with useful technology. Experts who have studied government technology contracting warn that projects often fail because details are not sufficiently thought through.  The Colorado DOC seems to have walked down this familiar path by focusing largely on its own financial interest without giving much thought to the user experience or the financial impact on incarcerated people and their families....

Historically, people in prison have communicated with the outside world using tools that were simultaneously specialized and universal. Specialized in the sense that letters and phone calls were subject to restrictions and monitoring for security.  Universal in the sense that the actual communications networks were the same ones used by the population at large — namely the nation’s mail system and the network of Bell telephone companies.  These networks charged reasonable, regulated rates for universal service.   Emerging technologies for prison communication are taking a decidedly different approach: instead of applying security protocols to a general purpose network, prisons are relying on specialized providers that use proprietary systems and charge user fees far in excess of cost.  The profits of this model are then divided among the prison systems and the private equity firms that own the providers.

New technologies have the potential to help incarcerated people.  But the ways in which such systems are being implemented tend to focus on profits over people.  The Colorado/GTL contract provides other jurisdictions with a case study in how new technologies can be implemented in ways that financially exploit incarcerated people and their support networks.  Other jurisdictions should view the Colorado experience with caution, and strive to develop better, more humane models for bringing prison communications into the twenty-first century.

July 6, 2017 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (0)

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Highlighting efforts to expand Miller (and Graham?) to older "kids" in Pennsylvania

This new local article, headlined "In Philly courts, whether they'll die in prison comes down to their birthday," reports on efforts by young adult offenders to expand the Supreme Court's recent Eighth Amendment doctrines limiting severe juvenile punishments.  Here are excerpts:

In 1982, when Judge Armand Della Porta sentenced Orlando Stewart to spend the rest of his life in prison, he did it with apparent regret.  “This is the best example of how wrong mandatory sentencing is,” he said.  Stewart was the last of 10 West Philadelphia teenagers sentenced in the 1981 death of University of Pennsylvania graduate student Douglas Huffman. They’d gone out in a pack, looking for someone to rob.  One teen hit Huffman, knocking him to the pavement where he hit his head hard enough to fracture his skull. Huffman declined medical treatment, and was found dead in his bed two days later.

Seven of the teens served short sentences, some as little as a year.  Ronald Saunders, who orchestrated the attack, was sentenced to life.  But he was made eligible for parole this March after a U.S. Supreme Court ruling that drew on evolving brain science to conclude juveniles are less culpable than adults, and cannot be doomed to life without parole under mandatory sentencing rules.  Charles Manor, the teen who knocked Huffman to the ground, was also made eligible for parole.

But Stewart, who never touched Huffman, won’t get a new sentence.  That’s because two months and 10 days before the crime, Stewart turned 18.  Those two months were the difference between kid and adult under the law — and between the “hope for some years of life outside prison walls” promised in that 2016 Supreme Court decision and the certainty of death in prison.

Now, appeals by 18-, 19-, and 20-year-old lifers like Stewart have begun to reach Pennsylvania’s highest court.  One was filed in June by Charmaine Pfender, who was 18 when she shot a man she says was attempting to rape her at knifepoint, killing him.  Such petitions argue that the same immaturity and impulsivity that diminish younger teens’ culpability continue well into the 20s, as a person’s brain continues to develop.  If successful, the appeals could have sweeping implications: More than half of Pennsylvania’s lifers entered the state prison system between age 18 and 25.  That’s 2,763 inmates.

These arguments appear to be gaining traction elsewhere.  An Illinois appeals court in December granted a new sentencing hearing to Antonio House, who was 19 when he participated in a gang-related killing.  And a federal judge has agreed to hear arguments in the Connecticut case of Luis Noel Cruz, who was 18 when he participated in a murder.

Laurence Steinberg, a Temple University psychologist specializing in brain development, says such arguments have a scientific basis. His research shows that, while cognitive abilities mature by age 16, other parts of the brain mature later. Areas that influence criminal culpability, like impulsiveness, risk-aversion, and resistance to peer pressure, continue maturing well into the 20s.  “The science would certainly say there’s significant brain maturation that continues to go on at least until age 21, if not beyond,” he said. “The legal question is harder than the scientific question.”...

In light of evolving neuroscience, some jurisdictions have begun to set up young-adult courts, targeting those between 18 and 25 for consideration that is somewhere between juvenile and adult proceedings. San Francisco, Brooklyn, and Chicago have all launched such initiatives.  But in a string of U.S. Supreme Court cases, beginning with Roper v. Simmons, the 2005 case that abolished the juvenile death penalty, the court determined “a line must be drawn.” Age 18 seemed a conventional choice.

This line has led to perplexing moments in the courtroom over the last year and a half, as Pennsylvania judges have worked to resentence some 500 juvenile lifers — the largest such population in the nation.  Their sentences were deemed illegal under Miller vs. Alabama, a 2012 case, but it took a second case, Montgomery v. Louisiana, to get Pennsylvania courts to apply the ruling retroactively.

At least a half-dozen lifers who sought new sentences in Philadelphia waited for months while lawyers tracked down birth certificates from the 1950s, ’60s, or ’70s to determine whether they were on the right side of 18 at the time of the crime.  One, Steven Drake — the only 18-year-old in a group of 11 youths charged in a 1971 stabbing in West Philadelphia — was 23 days too old to make the cut, according to the date of birth on his court docket.

As the title of this post highlights, while this article discusses efforts to expanded the reach of the Supreme Court's Miller ruling precluding mandatory LWOP sentencing of juvenile murderers, this kind of litigation also would carry the potential to expanded the reach of the Supreme Court's prior Graham ruling precluding any LWOP sentencing for juvenile non-homicide offenders.

July 6, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Who Sentences? | Permalink | Comments (3)

Wednesday, July 5, 2017

"How smart was Obama's 'Smart on Crime' initiative? Not very"

The title of this post is the headline of this new Fox News commentary authored by Lawrence Leiser (president of the National Association of Assistant United States Attorneys), Nathan Catura (president of the Federal Law Enforcement Officers Association), Bob Bushman (president of the National Narcotics Officers’ Associations’ Coalition), Al Regnery (chairman of the Law Enforcement Action Network), and Ron Hosko (president of the Law Enforcement Legal Defense Fund). The piece largely serves as a defense of the new Sessions charging/sentencing policies, and here is the bulk of what this impressive quintet have to say:

Department of Justice policies since the 1980s directed federal prosecutors to charge the most serious readily provable offense, unless justice required otherwise.  It’s undisputed that this charging practice, applied over the course of several Republican and Democratic administrations in recent decades, contributed to the reduction of violent crime by half between 1991 and 2014.

The Obama administration’s “Smart on Crime” initiative — touted by former Deputy Attorney General Sally Yates in a recent oped in the Washington Post titled “Making America scared again won’t make us safer” — undermined those hard-fought gains in public safety, and ushered in significant increases in violent crime.  In 2015, violent crime rose 5.6 percent — the greatest increase since 1991 — and included a shocking 10.8 percent increase in homicide rates.  And, although the final numbers for 2016 have not been published, the preliminary data suggests another substantial increase in the violent crime rate.

Among the policies championed by then Attorney General Eric Holder and Deputy Attorney General Yates was one that reversed long-standing charging policies and directed federal prosecutors to avoid minimum sentences against drug traffickers, as mandated by Congress, and instead pursue lesser charges.  Despite the well-known and deadly violence associated with drug cartels, gangs and their networks, the Holder-Yates policies directed federal prosecutors in certain cases to under-charge drug trafficking cases and avoid triggering statutory minimum penalties by not pressing charges on the actual amount of drugs that traffickers distributed, such as heroin, crack cocaine, and methamphetamine.

Changes in federal law enforcement policy can ripple through communities across the country and affect their safety.  “Smart on Crime” was part of a larger policy shift within the Obama administration from drug abstinence and accountability to drug acceptance and victimization.  Since its inception, correlative increases in drug abuse, overdose deaths and violent crime have had a devastating impact on every community, regardless of sex or demographics.  The reduced charging and sentencing of thousands of drug traffickers and their early release from prison — all hallmarks of the Holder-Yates policies of the Obama years — have begun to leave their devastating mark downstream on the safety of communities across the nation.  The surge in violent crime should not be surprising.  Drug trafficking by its very nature, is a violent crime.

Take the recent account of Michael Bell, a former federally-convicted methamphetamine dealer who, when facing new state charges in Tennessee for kidnapping and domestic assault, shot two sheriff’s deputies during a court proceeding.  Bell would have still been in federal prison had he not been released in 2015, three years earlier than scheduled, because of the across-the-board sentencing reductions prior administration leaders pushed the U.S. Sentencing Commission to impose.

Not surprisingly, those former officials continue to use the term “low level, non-violent offender” to promote a sanitized narrative of drug trafficking for profit.  Law enforcement professionals know that drug trafficking enterprises are comprised of integrated networks of street corner dealers, mid-level traffickers, distributors, producers and cartel leaders, whose collective efforts inherently rely on violence and have contributed to the deaths of over 50,000 Americans last year in drug overdoses alone.

Despite the evocative “second chance” narrative that stirs support among sentencing reformers, law enforcement professionals also know that the people who end up in federal prison work hard to get there.  Few offenders go to prison for their first offense, or even the second or third.  Many of the people who end up in federal prison have committed violent crimes, are members of drug trafficking and criminal organizations or simply have chosen to continue to disregard our laws. Because the majority of criminals admit their guilt, plea bargaining involves the dismissal or reduction of related charges, which greatly reduces the criminal histories and sentences of countless criminals. That means the numbers and types of crimes for which many of them are arrested, but never charged or convicted, are incalculable.  Criminals are committing thousands of crimes and violent acts against our citizens for which they are never held accountable.

Seeking justice and keeping the peace, it is federal law enforcement agencies and their state and local partners who will strive to enforce the laws that Congress enacted to protect our country and its citizens.  The surest way to preserve public safety is to honor the laws the people have passed and to enforce them to the fullest.

July 5, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (25)

Divided California Supreme Court decides Prop 47 did not alter rules for retroactivity of Prop 36 three-strikes reform

As reported in this Los Angeles Times article, headlined "California Supreme Court makes it harder for three-strike prisoners to get sentence reductions," earlier this week the top court in California divided over the resolution of an intricate and interesting retroactivity question. Here are the details:

Judges have broad authority in refusing to lighten the sentences of “three-strike” inmates, despite recent ballot measures aimed at reducing the state’s prison population, the California Supreme Court ruled Monday. In a 4-3 decision, the court said judges may freely decline to trim sentences for inmates who qualify for reductions under a 2012 ballot measure intended to reform the state’s tough three-strikes sentencing law.

Justice Leondra R. Kruger, an appointee of Gov. Jerry Brown, joined the more conservative justices to reach the result. The decision aimed to resolve questions posed by two ballot measures in recent years to reduce the population of the state’s overburdened prison system.

Proposition 36 allowed three-strike inmates to obtain sentence reductions if their third strike was neither serious nor violent. Judges were entitled to refuse a reduction if they believed the inmate posed an “unreasonable risk of danger to public safety.” They could consider the inmate’s history, disciplinary record in prison or other evidence.

Two years later, voters passed another ballot measure to reduce the prison population.  That measure, Proposition 47, created a definition of a safety risk that judges were required to apply.  Inmates could be denied a sentence reduction only if they were deemed to pose an unreasonable risk of committing certain crimes, including a killing, a sexually violent offense, child molestation or other serious or violent felony punishable by life in prison or the death penalty.

The court majority, led by Chief Justice Tani Cantil-Sakauye, said Monday that definition did not apply to three-strikers, who have been sentenced to 25 years to life for repeated crimes.  If it had, Cantil-Sakauye wrote, it would “result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36.”

Cantil-Sakauye noted that none of the ballot materials for Proposition 47 mentioned that it would affect three-strike prisoners. Proposition 47 allowed judges to reduce some nonviolent felonies to misdemeanors.  “Based on the analysis and summary they prepared, there is no indication that the Legislative Analyst or the Attorney General were even aware that the measure might amend the resentencing criteria governing the Three Strikes Reform Act,” the chief justice wrote.

The ruling came in appeals filed by David J. Valencia and Clifford Paul Chaney, who were both sentenced to 25 years to life under the three strikes law and both eligible for reduced terms under Proposition 36. Valencia’s criminal history included kidnapping, making criminal threats and striking his wife.  Chaney’s record included armed robbery and three convictions for driving under the influence....

Justice Kathryn Mickle Werdegar and Brown’s two other appointees — Justices Goodwin Liu and Mariano-Florentino Cuéllar — noted in dissents that Proposition 47 clearly stated that the definition would apply throughout the criminal code.  The more restrictive definition advanced “the goal of concentrating state corrections spending on the most dangerous offenders,” Cuéllar wrote, and gave three-strike prisoners only “a marginally stronger basis” for winning sentence reductions.

Liu said the court majority had concluded “that the drafters of Proposition 47 pulled a fast one on an uninformed public.” But it is also possible that voters, unhappy about the huge amounts of money being spent on prisons, “knew exactly what they were doing,” Liu wrote.  Monday’s ruling “disserves the initiative process, the inmates who are now its beneficiaries, and the judicial role itself,” he said.

The full 110-page(!) opinion in this case is available at this link.

July 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, July 4, 2017

"Everyone should go to jail, say, once every ten years"

The title of this post is the (slightly off) headline of this recent Los Angeles Times op-ed authored by Jesse Ball. Here is the start of the provocative piece: 

To a nation of jailers:

A notable demand that is made upon the citizens of the United States of America is that of jury duty.  Although many despise, hate and avoid it, there is a general sense that the task is necessary. We believe a society is only just if everyone shares in the apportionment of guilt.

To this demand of jury duty, I would like to add another, and in the same spirit.  I propose that all citizens of the United States of America should serve a brief sentence of incarceration in our maximum-security penitentiaries.  This service, which would occur for each person once in a decade, would help ensure that the quality of life within our prisons is sufficient for the keeping of human beings.

The new population of inmates would not be separated from the general population. They would be like any others, and treated like any others. The length of incarceration would be randomly determined, anywhere from three to 90 days. Crucially, you would not be told in advance how long you would have to be there.

And of course, while you are in prison serving your incarceration duty, your behavior will have to be perfect. If you were to fight with another inmate or rebuke a guard, your time might be extended, and that would go for everyone: peons, aristocrats, elected officials. All elected and appointed officials, judges, federal, state servants, members of the military, would participate in incarceration duty. There would be no putting it off.

Just think, if everyone in the United States were to become, within a 10-year period, familiar with what it is like to be incarcerated, is there any question that the quality of our prisons would improve? It also follows that the skill and understanding of our juries might grow apace, as they would now know to what they were condemning those they condemn.

I describe the headline of this piece as "slightly off" because it seems the author is actually calling for national service duty at maximum-security penitentiaries, not just jails.  As one who has visited a few maximum-security penitentiaries and a few jails, I can say that one learns a lot just from a visit to any locus of incarceration.  But while I am not sure I would endorse a mandate of actual periods of incarceration as a civic duty, I still thought it worth spotlighting this notable commentary on a day we celebrate independence and freedom.

July 4, 2017 in Prisons and prisoners | Permalink | Comments (13)

"Impeachable Offenses? The Case for Removal of the 45th President of the United States"

The title of this post is the title of this notable new blog created by former federal prosecutor and sentencing guru Professor Frank Bowman. Frank sent a note about the blog around a criminal law professor listserve yesterday, and I thought sharing that note today was, in a nerdy-law-professor way, kind of patriotic. So here is a bit of what Frank had to say about his new blog:

I propose to discuss, as dispassionately as possible, the case for impeachment of Mr. Trump. An actual impeachment is, as I’m sure you’d agree, a highly unlikely event.  But the prospect is talked about constantly, so I thought I’d try to create a resource for careful examination of all aspects of the question. I hope to make it a combination of (1) sources for those really interested in the subject, (2) quick-hit posts of links to other articles by other authors discussing impeachment, and (3) a growing series of essays by me, perhaps some of my students, and maybe other contributors on aspects of the impeachment problem.

Although it is a work in progress, I now have enough content on the site that I feel comfortable in telling people about it. I am in the midst of a series of posts analyzing the case for criminal obstruction of justice against Mr. Trump. See, e.g., this posting. In it, I discuss the views of Eric Posner, Daniel Hemel, Randall Eliason, Alan Dershowitz, and others. Professor Dershowitz has been kind enough to respond to my remarks on his position, and I’ve posted a rejoinder.

July 4, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Monday, July 3, 2017

Highlighting Justice Gorsuch's interesting concurrence in Hicks on the perils of permitting sentencing error to persist

Adam Liptak has this effective new article in the New York Times about the effectiveness of the new Justice on the Supreme Court, Neil Gorsuch. The article is headlined "Confident and Assertive, Gorsuch Hurries to Make His Mark," and it develops the point that Justice Gorsuch's "early opinions were remarkably self-assured." The article and that line reminded me that I have been meaning to highlight Justice Gorsuch's remarkable little concurrence on the final day of the term in the Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here).

Hicks is a quirky case in a quirky posture after the defendant was sentenced under the wrong crack sentencing law during the transitional uncertainty after the passage of the Fair Sentencing Act. The government admits in its briefing to SCOTUS that Hicks' 20-year mandatory-minimum sentence was legally erroneous, but the government asked SCOTUS to remand the case to the Fifth Circuit to conduct the full plain error analysis. The Supreme Court did just that via a short order, but the Chief Justice joined by Justice Thomas dissented with a short opinion suggesting that SCOTUS should make a plain error decision before being willing to vacate the judgment below. This dissent, it seems, prompted Judge Gorsuch to want to defend the Court's action and in so doing he had a lot of interesting things to say. These passages from the end of his concurrence in particular caught my attention:

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute.  No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome.  Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U.S.C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.  So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated.  Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016).  When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success.  For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?  Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).

Now this Court has no obligation to rove about looking for errors to correct in every case in this large country, and I agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911–913 (2008), suggesting caution..... But, respectfully, I am unaware of any such reason here.  Besides, if the only remaining objection to vacating the judgment here is that, despite our precedent routinely permitting the practice, we should be wary of remanding a case without first deciding for ourselves the latter elements of the plain error test, that task is so easily done that in this case that I cannot think why it should not be done. Indeed, the lone peril in the present case seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.

Based on Justice Gorsuch's votes in a few other criminal cases, early indications suggest that he is far more often going to vote in favor of the government rather than in favor of criminal defendants across the range of criminal law and procedure cases.  But his decision to write separately in this little case to push back at the dissenters here with this particular language leads me to wonder if Justice Gorsuch (like the Justice he replaced) might prove to be an especially interesting and unpredictable vote and voice in federal sentencing cases in particular.

July 3, 2017 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Crime, the Constitution, and the Trump Administration"

The title of this post is the title of this extended commentary authored by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice.  Here is how it starts and ends:

President Trump says crime is a serious problem and that he’s going to do something about it.  His first move was to nominate Alabama Senator Jeff Sessions to be the new attorney general.  Sessions, a former federal prosecutor, is widely known for his “lock ‘em up” philosophy and tough stances on drugs and immigration.  As the first 100 days of the Trump presidency recede into history, it is a good time to pause and assess what’s in store for the American criminal justice system.

To begin, it is very unfortunate that Trump has chosen to elevate the crime problem in the way that he has because it reinforces the mistaken idea that the federal government “oversees” our criminal justice system.  In fact, the Constitution says very little about federal criminal jurisdiction.  According to the constitutional text, piracy, treason, and counterfeiting are supposed to be the federal government’s concern, but not much else.  The common law crimes of murder, rape, assault, and theft are to be handled by state and local governments.  Of course, as the federal government grew in size and scope, it came to involve itself in a host of local matters — from schools to road maintenance to crime fighting.  Although Trump has spoken of “draining the swamp” and slashing the federal budget, he not only seems uninterested in reducing the federal role in crime-fighting, but is also clearly moving to expand that role....

To conclude this overview of the criminal justice policy landscape, the first few months of the Trump presidency have been unsettling, to say the least.  Trump may have good intentions, but his gut instincts in the area of criminal justice are terribly misguided.  Massive deportations, marijuana raids, property seizures, and militarized policing will jolt the foundations of our constitutional republic.  Criminal justice reformers will win some policy battles — especially at the state and local level, but the road ahead looks treacherous indeed.

July 3, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Sunday, July 2, 2017

Reviewing what Hurst has come to mean for the death penalty in Florida

This new Miami Herald article, headlined "There are fewer murderers on Florida’s Death Row but not because of executions," reports on the enduring echo effects of the Supreme Court's most significant capital punishment ruling in recent years. Here is how the article gets started:

The full impact of a historic U.S. Supreme Court ruling on Florida’s death penalty system is finally emerging as the state’s Death Row population is smaller than it was more than a decade ago and will keep shrinking for a long time.

Florida has not executed an inmate in 18 months. No inmates haves been sent to Death Row in more than a year, a sign that prosecutors are not trying as many first-degree murder cases because of uncertainties in the sentencing system.

“There is no reason to sign a death warrant if you know it’s going to get delayed,” said State Attorney Bernie McCabe, the top prosecutor in Pinellas and Pasco counties. “I think judges are reluctant to if they don’t know what the rules are.”

Florida’s Death Row population now stands at 362, according to the Department of Corrections web site. That’s the lowest number since 2004; only a year ago, the population was 389.

Many more cells on Death Row are certain to be emptied as the Florida Supreme Court continues to vacate death sentences because they violate a 2016 U.S. Supreme Court decision known as Hurst v. Florida.  The case struck down the state’s death penalty sentencing system because it limited jurors to an advisory role, a violation of the Sixth Amendment right to a trial by jury.

In four new cases, the state’s high court upheld first-degree murder convictions Thursday but ordered that all four defendants must be resentenced because of the Hurst decision, a step that could spare any or all of them a trip to the execution chamber.

One of the four, John Sexton, was convicted of the brutal 2010 Pasco County slaying of Ann Parlato, a 94-year-old woman who lived alone. The jury that convicted Sexton recommend his execution by a vote of 10 to 2, a split decision that justices said Thursday is a violation of the Hurst decision.  Justices also lifted the death sentence of Tiffany Ann Cole, convicted of burying a couple alive in Jacksonville.  She’s one of three women on Death Row.

Legal experts say that in all, up to 150 death sentences could be reversed or be sent back to trial courts for resentencing hearings in other cases in which the jury’s recommendation of a death sentence was not unanimous. Those penalty phase hearings will strain the limited resources of prosecutors and public defenders, who must scramble to find old trial transcripts and witnesses and must empanel new juries.  “I’ll use one word: ‘chaos,’ ” said retired Supreme Court Justice Gerald Kogan of Miami. “It’s just a mess.”

Scott Sundby, a law professor at the University of Miami, said the impact on the criminal justice system will be significant.  “It essentially means that every new penalty phase is going to have to be re-investigated and presented in full,” Sundby said.  “There will not be an ability to simply rely on the prior penalty phase.”

July 2, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Saturday, July 1, 2017

UK study finds greater recidivism among sex offenders who received treatment in prison

As reported in this BBC article, the "main sex offender treatment programme for England and Wales has been scrapped after a report found it led to more reoffending." Here is more:

Researchers found prisoners completing the programme were slightly more likely to offend than a control group.  The Ministry of Justice (MOJ) replaced the scheme in March after research confirmed evidence of its weaknesses. The main programme to psychologically treat the highest-risk offenders has also been replaced, the ministry said.

The MOJ confirmed the change in treating sex offenders following publication on Friday of its own study which suggested the Core Sex Offender Treatment Programme (SOTP) could be making the situation worse. The scheme, designed to challenge the behaviour of male sex offenders with psychological techniques to change their thinking, was first approved in 1992.

Researchers followed what happened to 2,562 prisoners who took part in the 180 hours of group sessions before their later release from prison. They then compared their behaviour over the following years with more than 13,000 comparable offenders.

"More treated sex offenders committed at least one sexual re-offence [excluding breach of conditions of release] during the follow-up period when compared with the matched comparison offenders (10% compared with 8%)," said the study. "More treated sex offenders committed at least one child image re-offence when compared with the matched comparison offenders (4.4% compared with 2.9 %).

"The results suggest that while Core SOTP in prisons is generally associated with little or no changes in sexual and non-sexual reoffending ... the small changes in the sexual reoffending rate suggest that either Core SOTP does not reduce sexual reoffending as it intends to do, or that the true impact of the programme was not detected.

"Group treatment may 'normalise' individuals' behaviour. When stories are shared, their behaviour may not be seen as wrong or different; or at worst, contacts and sources associated with sexual offending may be shared." An earlier version of the scheme, in place in 2000, had appeared to reduce the offending of medium-risk men. But a study seven years later, after Core SOTP had been expanded, suggested the sessions had become too generic and based around a "detailed manual", rather than tailored to each offender.

The full Ministry of Justice study is available at this link.

July 1, 2017 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (9)