Thursday, July 21, 2016
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Should we all share Senator Grassley's optimism about federal statutory sentencing reform's prospects?
Long time readers know my hopefulness about significant federal sentencing reform moving through the current Congress has waxed and waned, especially as key leaders and members of both houses of Congress have expressed more or less optimism about the prospects for draft legislation getting full votes. And, as this post a few weeks ago revealed, I have lately been gespecially pessimistic about the prospects for Congress to summon the spirit or find the time to get any reform bill to President Obama's desk.
But this new local article from Iowa, headlined "U.S. Sens. Grassley, Scott optimistic on sentencing reform," prompts me to become a bit more hopeful again. Here are excerpts:
U.S. Sen. Chuck Grassley, joined by a fellow Republican lawmaker from South Carolina, is expressing optimism about the prospects for passing federal criminal sentencing reform legislation.
The senior Iowa senator spoke at a news conference Wednesday at the Des Moines International Airport with U.S. Sen. Tim Scott, who gave a powerful speech on the Senate floor last week in which he described being targeted by police because of he is black. Scott was stopped by law enforcement seven times in one year while he was an elected official, sometimes for speeding, but other times simply because he was driving a new car in the wrong neighborhood or other insignificant reasons, he said.
Scott saluted Grassley's work Wednesday on justice reform issues, saying the proposed legislation has attracted a broad coalition from the far left to the far right. "This is an unusual time when we seem to have the stars aligning," he added. He described the legislation as serving the best interests of communities as well as individuals.
The Sentencing Reform and Corrections Act is authored by Grassley and co-authored by Scott. The package would reduce mandatory minimum sentences for nonviolent drug offenders and would expand prison programs intended to reduce the likelihood that inmates will re-offend. It would also reduce sentences for inmates who successfully complete those programs. In addition, the bill would make changes to the federal justice system, such as allowing people convicted of certain crimes as juveniles to expunge their criminal records if they turn their lives around.
The bill has cleared the Senate Judiciary Committee, which is chaired by Grassley, and is awaiting action by the full Senate. Meanwhile, House Speaker Paul Ryan, R-Wis., has announced the House will consider several separate pieces of legislation to address criminal justice reform. Grassley said the House proposals include addressing such issues as asset forfeiture, but he expressed confidence any differences can be ironed out in a House-Senate conference committee.
Grassley said the legislation responds to Iowans who have expressed concerns about a rising federal prison population, costs of housing them and the possibility that some people with relatively minor criminal backgrounds are receiving lengthy sentences intended for hardcore criminals. "Successfully addressing the different perspectives has not been an easy task, especially if we want to ensure that career criminals and the most violent offenders are not allowed to wreak havoc once again in their communities," Grassley said. "The work that we started more than a year ago has been a thoughtful, bipartisan deliberation that will promote opportunities to reduce recidivism while protecting our communities from violent career criminals."
My prior post expressed fear that the Sentencing Reform and Corrections Act was essentially dead in Congress, but I am certain Senator Grassley knows a lot more than I do about whether it may still have some legislative life left in it. I sure hope so.
Wednesday, July 20, 2016
"How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System"
The title of this post is the title of this intriguing new article authored by Matthew Clair and Alix Winter from the jounral Criminology and available at this link. Here is the abstract:
Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing.
Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws.
We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.
Why Donald Trump's "law and order" vision and voice is so important to advocates of sentencing reform (and marijuana reform)
Two new commentaries about current politics together help explain why I continue to view GOP Prez candidate Donald Trump as the most important (and also most opaque) national figure with respect to the future direction of a lot of on-going criminal justice reform movements. The full headlines of the commentaries provides a window into my thinking:
From the New Republic here, "The GOP Will Be the Party of Trump for a Long Time: He's not the outsider anymore, but the most important voice in his party."
From the Atlantic here, "The Precarious New Republican Orthodoxy on Crime: Steve Teles explains the genesis of the conservative movement for criminal-justice reform — and how the rise of Donald Trump might bring about its end."
Here are a few passages from these pieces, respectively:
From Jeet Heer: "With the Republican National Convention in Cleveland, Trump’s approach to politics has become squarely mainstream in his party. The Trumpification of the GOP is not likely to go away soon. It’s rooted in some fundamental demographic facts that the party has been struggling with for decades: that it’s increasingly a party of old white people in a nation that is becoming more diverse. Even if Trump loses by a blowout in November, the party is likely to become even more Trumpified because the #NeverTrump people will have left the party — or at least become inactive — while the politicians and activists who are most responsive to his message will have stayed on. That’s how Barry Goldwater conservatism continued to be a force after his epic defeat of 1964, and it’s likely to replicate itself with Trumpism. Like it or not, the GOP will be the Party of Trump for many years to come."
From Steve Teles: Trump [i]s like a throwback to New York in the 1980s.... The Right on Crime movement depends upon, in some important ways, the transformation of the Republican Party into a more consistently anti-statist party in the wake of the Tea Party, combined with the role that evangelical leaders have played in encouraging an emphasis on second chances and forgiveness. Neither of those changes in conservatism is characteristic of the conservatism of Trump. I could imagine him going all-in on a back-to-the-80s, Charles Bronson-ish approach to crime, and if he’s able to rebrand the Republican Party in that way, that would be very troublesome [for those supportive of criminal-justice reform].
Tuesday, July 19, 2016
Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in
As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice. Here are the interesting details concerning a rare (but not unprecedented) district court decision:
A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”
Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.
Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.
The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.
Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.
Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.
After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.
Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....
Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....
Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.
Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...
Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.
Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.
Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines
In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines. Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline.
But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines. I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration. As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.
For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent. What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong. But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.
If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion. I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:
If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett. I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.
Has the drug war really "made policing more violent"?
The question in the title of this post is prompted by this new Democracy commentary authored by Jonathan Blanks that carries this full headline: "The War on Drugs Has Made Policing More Violent: What can be done to curb the excessive and, sometimes, predatory policing that has emerged from the Drug War?". Here are excerpts from the piece:
American policing today has become increasingly aggressive and, at times, even predatory. Policies and tactics have evolved to make police contact more confrontational. In so doing, they have increased the chances of violence and fatal uses of force. This has been particularly true of efforts aimed at fighting the Drug War. Police are incentivized to initiate unnecessary contact with pedestrians and motorists, and they do so most often against ethnic and racial minorities. Such over-policing engenders resentment among minority communities and jeopardizes public safety.
Some of the Drug War’s most disturbing images involve police officers in SWAT gear, kicking down doors, ransacking homes and endangering the lives of everyone inside during pre-dawn raids. Officers rummaging through a car for drug contraband while the driver sits helplessly on the sidewalk as onlookers drive by may be less violent, but is just as invasive and degrading. This experience can be humiliating under any circumstance, and any perception of race as playing a role in the stop piles resentment on top of humiliation.
The “pretextual” or “investigatory” stop is a common police tactic to investigate potential criminal activity — particularly drug possession and trafficking — in situations where there is no legal reason to suspect a crime is occurring. There is not a large amount of data on how often these stops produce contraband seizures, but what data there is suggests that the overwhelming majority of people who are stopped are guilty of no crime. Much like the pedestrian stops during the heyday of New York City’s “Stop and Frisk” program, most of the motorists stopped for investigatory purposes are black or Hispanic. Those who are stopped are often pressured to give consent to a search the officer has no legal right to demand.
There is evidence that some police departments, particularly state police and drug task forces in the American interior, target motorists with out-of-state plates in the hopes of finding drug proceeds and other unexplained cash. Cash-driven interdiction is the result of asset forfeiture laws that allow police departments to keep the proceeds of assets seized in connection with suspected crimes. This “policing for profit” puts budgetary concerns above public safety.
Officers are also trained to prepare for the possibility of violence in every encounter. Anti-police attacks such as the recent tragedies in Dallas and Baton Rouge heighten the fear and trepidation some officers feel in the field. While fewer police officers are feloniously killed in the line of duty per year than at almost any time in American history, officers who find themselves in stressful situations may be more likely to resort to the use of force, including deadly force, in order to maintain their sense of control during such encounters.
In short, the laws and tactics employed to fight the Drug War have transformed police officers from those who protect and serve to a force that, too often, actively searches the innocent and seizes for profit. Aggressive and antagonistic policing also increases the likelihood of disagreement, thereby increasing the possibility of escalation and the use of force that could lead to the injury or death of an innocent person. But the effects of aggressive policing extend beyond the outcome of any given police stop.
Although a majority of Americans express a “great deal” or “quite a lot” of confidence in the police, the same is not true across all racial and ethnic lines. Less than one-third of black respondents to a Gallup poll expressed a large amount of confidence in the police. And while a majority of Hispanics still have a lot of confidence in the police, just over 40 percent of other nonwhites do. Research by Charles Epp and others at the University of Kansas shows that support for police declines when individuals and the people they know have negative police experiences, particularly through investigatory stops.
This lack of confidence in the police can endanger communities. As Jill Leovy documented in her book Ghettoside, the poor relationships officers have with black Los Angelenos hinders homicide clearance rates and prosecutions. At the same time, the “broken windows” policing strategy that focuses on heavy enforcement of petty crimes has been shown to have no effect on the felony crime rate, the premise on which the strategy is based. Together, these create a tragic contradiction in which black communities are over-policed for drugs and petty crimes, but under-policed for homicides and other violent crimes.
I would generally agree with the suggestion that the drug war has contributed to the over-policing of many communities, particularly poorer communities, and I also fear that the drug war has contributed to strained relationships between police forces and certain communities. But I am not sure I would assert that the drug war has itself "made policing more violent": rather, based in part on experiences during alcohol Prohibition a century ago, I would be more inclined to assert that efforts to treat drug use and abuse through blanket prohibitions and criminal justice interventions creates the conditions for a society that has less respect for criminal laws and for police efforts to enforce order, and that in turn makes everyone involved in this part of the criminal justice system more prone to look to violence rather than to law as a means for securing order.
Some prior related posts:
- Senator Rand Paul blames ugliness of Ferguson on the ugliness of big CJ government
- Is an end to the modern drug war the only real way to prevent future Fergusons?
- Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
- After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?
Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:
The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.
Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks. The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.
Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65. He will remain free until he is to report to prison, in two to six weeks....
During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....
Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...
Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....
Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”
As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”
Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”
“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.
Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”
“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....
As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.
Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.
That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.
During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”
Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.
I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes. I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million. But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.
Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe. But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.
July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)
"Two Parties, Two Platforms on Criminal Justice: The Republicans nod to reforms, then take a sharp right turn."
The title of this post is the title of this timely new piece by Maurice Chammah, which includes a blow-by-blow accounting of how the party platforms have changed on criminal justice issues since 2012. Here is how the piece sets up the comparative look at how time changes platforms:
The 2016 Republican and Democratic party platforms — the GOP’s approved Monday night, the Democrats’ still in draft form — swing hard to the right and left, with Republicans amplifying their traditional positions against gay marriage, abortion, transgender rights, and immigration, and Democrats calling for expanded public healthcare and higher education, and a $15 minimum wage. Platforms are not binding on candidates, but they distill a consensus of the forces within the party at this point in history. That’s particularly clear this year on the subjects of crime and punishment.
In the new Democratic party platform, the fingerprints of the Black Lives Matter movement and Bernie Sanders are apparent, in calls for independent investigations of police-involved shootings, more body cameras, and training in de-escalation. There is a declaration that “states that want to decriminalize marijuana should be able to do so.” There is also a call for the end of the death penalty, something President Obama and Hillary Clinton have not endorsed. Parts of the Democratic draft platform clearly repudiate the tough language their party embraced a generation ago, when their current candidate’s husband was president. The mother of Sandra Bland, who died at a Texas jail last year and became a symbol of the Black Lives Matter movement, is scheduled to speak at their convention next week in Philadelphia.
The Republican document reflects recent tensions in conservative circles. It includes the language of conservatives who call for reducing incarceration — influential Republican patrons like the Koch brothers, politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes plenty of traditional invocations of law and order. An ambitious bipartisan sentencing reform effort in Congress, which Sen. Ted Cruz supported and then abandoned, has been whittled down and allowed to languish. And it was opponents of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff David Clarke (who regularly attacks the "myths" of justice reform) who were in the lineup Monday night in Cleveland, where the evening’s theme was “Make America Safe Again.” It was those figures who dominated the party’s televised presentation.
To feel the tension, consider the 2016 passage on mandatory minimum sentences, which says such sentences served a good purpose and should only be rolled back sparingly: "In the past, judicial discretion about sentences led to serious mistakes concerning dangerous criminals. Mandatory minimum sentencing became an important tool for keeping them off the streets. Modifications to it should be targeted toward particular categories, especially nonviolent offenders and persons with drug, alcohol, or mental health issues, and should require disclosure by the courts of any judicial departure from the State’s sentencing requirements."
Conservative criminal justice reformers, who have gathered under the banner of “Right on Crime,” had gotten brief nods to rehabilitation and non-prison sentences for drug crimes into their 2008 and 2012 platforms. An April 2016 resolution they promoted, which was adopted by the Republican National Committee, points out that despite a massive growth in incarceration, many who are released from prison commit new crimes, meaning prisons might not be the best investment in public safety. They added language acknowledging the success of conservative lawmakers in traditionally red states to reduce incarceration and save money. “90% of the prisoners in this country are not federal,” says Ken Cuccinelli, the former attorney general of Virginia, “so it’s meaningful to talk about the experimentation and successes in the states.”
The rift in conservative circles was apparent when the 112 members of the full platform committee edited the document last week in Cleveland. At one point, April Newland, a delegate from the Virgin Islands, proposed adding a line supporting a national registry of child murderers, which had been in the 2012 platform. She described how her brother’s three and five year-old children were murdered by a man who went on to be released from prison, moved near a school, and molested more victims. Other delegates pushed back. “A federal mandate doesn’t work,” Maryland delegate JoeyLynn Hough said. “So, I’m sorry about your family, but I don’t think this is the answer.”
The committee also added support for “mens rea” reform, an effort to force prosecutors to prove a defendant intended to commit a crime, as well as strong language supporting drug treatment programs, particularly for first-time offenders. In other areas, the new platform’s language took a different tack, condemning the Supreme Court for limiting use of the death penalty, and Attorney General Loretta Lynch for her “present campaign of harassment against police forces around the country.”
At one of the hearings, delegate Giovanni Cicione, an attorney from Rhode Island, proposed language encouraging lawmakers to “fairly assess the social and economic costs of the failure of drug prohibition, and recognize that our states are sending a clear signal that a new approach is long overdue.”
“We have created with drug prohibition a multi-billion dollar underground economy, and a generation of Al Capones,” Cicione told the other delegates. “And if you want to respond to the Black Lives Matter protesters, if you want to respond to the families of those police officers who died in Dallas, if you want to respond to the families of Alton Sterling and Philando Castile... we can’t answer these questions without explaining how we demean and weaken law enforcement by forcing them to enforce unworkable laws.”
He admits he may have gone overboard in bringing up Black Lives Matter, and his suggestion failed. North Carolina delegate Ron Rabin worried his state “could be regionally surrounded by states where the use of drugs is legal and they come into our state to harass.” Cicione didn’t expect to win, but he did notice that the the average ages of the yes and no votes were “separated by 40 years,” which to him signalled that reformers will eventually get their way. “Those of us who grew up in a more tolerant environment about drugs are less afraid of them,” he said.
Monday, July 18, 2016
Detailing the steady growth in registered sex offenders in Texas
Last week, the Austin American-Statesman had this lengthy and effective article highlighting the history and modern realities of the sex offender registry in Texas. The piece is headlined "Program to corral ballooning sex offender registry failing," and here are excerpts:
Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who ... are designated as low-risk — to commit new offenses.
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.
Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.
In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.
By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry....
[T]he calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.
So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.
Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.
And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them. “The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.
Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.
Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago. Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.
Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.
"Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons"
The title of this post is the title of this notable new report from the Center for American Progress. Here is an excerpt from the report's introduction:
America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure. We lock up a greater share of our citizens than any other developed nation, destroying lives and separating families at an annual cost of more than $80 billion. In addition, we do little to prepare individuals behind bars for their eventual release, yet are surprised when some two-thirds return to our jails and prisons.
The crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.
The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities — a shift often referred to as deinstitutionalization. The number of Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization was not accompanied by the public investment necessary to ensure that community-based alternatives were made available. As a result, while people with disabilities — and particularly those with mental health conditions — were no longer living in large numbers in institutions, many began to be swept up into the criminal justice system, often due to minor infractions such as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three times as many people with mental health conditions as state mental hospitals.
People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities — such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders — are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.
Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, as community-based treatment and prevention services cost far less than housing an individual behind bars. According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing — one of the most intensive, comprehensive, and successful intervention models in use today — amounts to less than $20,500 annually, just two-fifths the cost of jail.
Sunday, July 17, 2016
Defense builds case for unconstitutionality of death penalty in federal court in Vermont
Those who follow the federal death penalty closely surely have heard of the long-running case from Vermont involving Donald Fell. Fell was involved in the murder of three persons way back in 2000, and the feds have been trying to secure and preserve a death sentence for the last dozen years. After an original death sentence reversed on appeal, Fell is getting a new opportunity to build a record in the District Court concerning his claims that the death penalty is unconstitutional. This recent local article, headlined "Fell's defense: The federal death penalty is 'irrational'," reports on these recent developments. Here are excerpts:
The final witness for the defense in the Donald Fell death penalty hearing in Rutland testified on the results of more than 20 years of research he’s gathered for the Federal Death Penalty Resource Council Project.
Based on that data, Kevin McNally, the project’s director and an attorney in Kentucky, said that the “federal death penalty is driven by irrational or illegal considerations,” including race, gender, geography, or luck. “It’s akin to being struck by lightning,” McNally said.
McNally cited the Donald Fell case as a prime example of the role luck and timing can play in capital cases and the authorization of the death penalty....
Fell was convicted in the brutal killing of Terry King, a North Clarendon grandmother, and sentenced to death in 2005. The verdict was overturned due to juror misconduct and a retrial is scheduled for early next year. The two-week long hearings in Rutland could lead to a historic Supreme Court ruling on the constitutionality of the death penalty....
The lack of a uniform standard for seeking the death penalty is one of many factors that has eroded public trust in capital punishment, according to Richard Dieter, executive director of the Death Penalty Information Center, who also testified on Friday. Although a majority of Americans still support the death penalty, Dieter said, growing numbers have expressed concern about the way it is applied....
Counsel for the U.S. government questioned whether the Death Penalty Information Center was a neutral source of information as Dieter characterized it. Attorney Sonia Jimenez read the titles of several reports published by the center: “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty”; “The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All”; and “A Crisis of Confidence: Americans’ Doubts About the Death Penalty.”
Asked if he was opposed to the death penalty, Dieter said he took a fact-based approach. “It’s not a philosophical issue for me,” he said. “It’s not a moral issue.”
“The present system is broken,” he continued. “Can it be fixed? Maybe it can’t be fixed.”
The government will present its case next week in Rutland District Court.
In this post over at PrawfsBlawg, Michael J.Z. Mannheimer provides some additional context and highlights his distinct interest in the case:
The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment. Curiously, the court issued an order this past February calling for a hearing on the issue. Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality. However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.” In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine the sources of social and statistical information cited by the defense” and “offer its own empirical evidence in response.”...
Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal. My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States). I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances. Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.
Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict
A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday. Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:
The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because “[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.”....
Some of our sister circuits seem to have held that a jury’s special-verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity for purposes of sentencing. [CITES] But those cases did not directly address the argument raised by Pimentel-Lopez — that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing....
Some of our sister circuits seem to have assumed that the juries’ findings merely acquitted defendants of possessing higher quantities of drugs, and that may have been warranted on the record before them.... Here, by contrast, the record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances.
Saturday, July 16, 2016
Michigan appeals court rejects "sentencing by videoconference" as a violation of state rules
As reported in this AP piece, a Michigan appeals court said a state trial court erred when sentencing Trenity Heller by video in a drug case. Here is the background and basic details of the ruling:
The use of technology has been hailed as a great way to save money in Michigan's criminal justice system, and state rules allow video from jail for a variety of hearings, including arraignments, guilty pleas and misdemeanor sentences. "Felony sentencing is not on the list," the appeals court said in its 3-0 decision that Heller's rights were violated.
"Sentencing by video dehumanizes the defendant who participates from a jail location, unable to privately communicate with his or her counsel and likely unable to visualize all the participants in the courtroom," the court said, adding that it "clashes with the judge's duty to acknowledge the humanity of even a convicted felon."
But Smith, the only Circuit Court judge in Hillsdale, said he gives everyone a fair shake. He sees other benefits, too. "The jail is across town so we do save money and security" by using video, Smith told The Associated Press. "If they don't leave jail, then we don't have them in the courthouse and have the problems Berrien faced."
He was referring to the fatal shooting of two bailiffs Monday at the Berrien County courthouse. The sheriff said an inmate somehow got a deputy's gun while being moved between the court and jail.
Smith also said he doesn't choose a sentence depending on whether someone is standing in front of him or appearing by video. "I sentence on facts, not on emotions," the judge said.
Smith said nearly all felons at the jail have chosen video and waived their right to stand in court since he began offering a choice earlier this year.
Friday, July 15, 2016
"Prosecuting Collateral Consequences"
The title of this post is the title of this notable new paper authored by Eisha Jain and recently posted to SSRN. Here is the abstract:
Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing.
As a result of ubiquitous plea bargaining and collateral consequences — state-imposed civil penalties that are triggered by criminal convictions — prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties.
As some commentators have pointed out, prosecutors who are aware of collateral consequences may have powerful incentives to drop charges or otherwise structure pleas to minimize the likelihood of certain collateral consequences. But importantly, prosecutors also have strong structural incentives to take the opposite approach and reach pleas to maximize the likelihood of civil penalties. For some prosecutors, enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences.
This Article develops an analytic framework for understanding the structural incentives that lead prosecutors to influence collateral consequences; exposes legal and ethical problems associated with plea bargaining in light of collateral consequences; and argues that collateral consequences can undermine important interests in transparency and accountability.
Thursday, July 14, 2016
Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record
According to the latest headlines and alerts on my smart phone, the word today is that GOP Prez candidate Donald Trump is poised to select Indiana Gov Mike Pence as his running mate. As a supporter of sentencing reform, I am disappointed a bit that Newt Gingrich did not make the cut, as he has been a recent vocal and repeated supporter of the "Right on Crime" sentencing reform efforts. (That said, Newt often sounded like a member of the tough-and-tougher GOP crowd in the past, and thus I would not have felt confident that even a Newt pick would signal a Trumpian affinity for sentencing reform.)
Gov Pence's record on criminal justice reform is decidedly mixed, and these linked press stories about various aspects of his work as Indiana's chief executive document the basics:
From May 2013 here, "Indiana Gov. Mike Pence signs sentencing, expungement bills into law":
Indiana Gov. Mike Pence has signed bills to revamp the state's felony sentencing laws and give some offenders the ability to expunge their records. "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," Pence said in a statement.
The sentencing legislation — House Bill 1006 — is the product of three years of work by lawmakers, judges, prosecutors and others. It's the first wholesale overhaul of the criminal code since the 1970s. It will move Indiana's system of four felony classes to one that has six felony levels. It also requires offenders to serve 75 percent of their sentences instead of the 50 percent currently required....
Pence had expressed concerns about an earlier version of the bill, saying it was too soft on offenders convicted of drug crimes. But lawmakers made changes that appeased the governor. Pence said Monday that the bill will "reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses."
House Bill 1482 gives those Hoosiers previously convicted of crimes the opportunity to essentially have their records wiped clean — if they've had a sustained period without a new offense. The bill sets different standards for different crimes.
Pence the bill will strengthen their opportunities for gainful employment. Businesses will no longer be able to ask applicants if they've been convicted of felonies. Instead, they'll have to ask if they've been convicted of felonies that have not been expunged. The new law "will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens," Pence said.
From March 2016 here, "Pence reinstates mandatory minimum prison terms for some drug crimes":
Gov. Mike Pence is toughening his stance toward drug dealers ahead of a likely bruising re-election campaign where he'll have to answer for Indiana becoming the nation's methamphetamine capital on his watch. The Republican signed into law House Enrolled Act 1235 on Monday, reinstating a 10-year mandatory minimum prison term for a person convicted of dealing meth or heroin who has a prior conviction for cocaine, meth or heroin dealing.
"Drug-abuse problems are not unique to our state, but I'm determined to meet this challenge head-on," Pence said. "We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."
An analysis of drug-dealing convictions since criminal sentencing reform was enacted in 2014, conducted by the nonpartisan Legislative Services Agency, found just four of the 119 individuals convicted of meth or heroin dealing had a prior conviction and were sentenced to less than 10 years in prison — receiving on average 7.5 years.
More concerning for some lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes, is Pence reversing course on his past actions to eliminate mandatory minimums by now reducing the ability of judges to issue the appropriate sentence for each criminal and giving prosecutors the upper hand in plea bargaining with an accused.
Given this governing histry, I am inclined to call Gov Pence comparable to Prez candidate Trump (and also Prez candidate Clinton) in the arena of criminal justice reform: if you try hard enough, you can readily find a basis to be very encouraged or a basis to be very discouraged by his statements and record.
First trader federally convicted for "spoofing" gets significant (below-guideline) prison term
As reported in this local article, headlined "Trader Michael Coscia 1st in nation to be sentenced under 'anti-spoofing' law," a notable new type of federal white-collar offender got a notable old-school type of punishment yesterday in federal court in Chicago. Here are some details:
In the outcome of a closely watched trial that could set precedent, convicted futures trader Michael Coscia was sentenced in federal court Wednesday to three years in prison and two years of supervised release for spoofing and commodities fraud.
Coscia, 54, of Rumson, N.J., was the first defendant in the country to stand trial under new anti-spoofing laws included in the 2010 Dodd-Frank Act. In November, he was found guilty of six counts of spoofing — the use of computer algorithms to rig markets in fractions of a second — and six counts of commodities fraud.
Prosecutors had recommended five to seven years in prison, while the defense had sought probation. Ultimately, U.S. District Judge Harry Leinenweber settled in the middle, citing Coscia's age and health, as well as the ambiguous amount of financial loss incurred by the victims.
"This is a very serious crime and it has serious consequences. ... (Coscia) has helped a lot of people over the years, not only family and friends, but also fellow traders. But he also engaged in spoofing and had no financial need to do so," Leinenweber said shortly before announcing the sentence.
Federal prosecutors were pleased with the outcome. "There was and has been this sort of suggestion throughout the course of this prosecution that this criminal case is somehow murky or unclear because of technology, because of the use of algorithms. Well, guess what? A lie is a lie. Deceit is deceit. ... The defendant cheated faceless victims out of money through deceit over the internet. Today's result and sentence, I think, is a reflection of that," U.S. Attorney Zachary Fardon said.
Assistant U.S. Attorney Sunil Harjani added that the sentence of imprisonment would send a message to traders in Chicago and throughout the U.S.
Coscia made about $1.4 million in only about two months by victimizing traders including those at Citadel, the Chicago financial services firm formed by billionaire Ken Griffin, when he manipulated the prices of futures contracts on the Chicago Mercantile Exchange, prosecutors have said.
Upon leaving the courtroom, Coscia declined to comment. He smiled as he hugged friends and family who had come to show support. During the hearing, he gave a brief statement asking for leniency and saying that he takes responsibility for his actions.
Stephen Senderowitz, Coscia's attorney, said he will file an appeal. During the hearing, Senderowitz emphasized that it's not clear how much money any individual trader lost because of Coscia's actions. That will be among the issues argued further during the appeal, during which the defense will also challenge the constitutionality of the spoofing law, he said afterward....
The Coscia case is "just the tip of the iceberg" in terms of the government's increasingly active role in such prosecutions, said Renato Mariotti, lead prosecutor on the case before recently joining a private practice. "For years, many people scoffed at the notion that the government could explain high-frequency trading strategies to judges and juries. No one is laughing anymore," Mariotti said in a statement after the sentencing.
Coscia commissioned the design of computer programs, known as algorithms, to manipulate prices in the markets of various commodities, including gold, soybean meal, soybean oil, high-grade copper, Euro FX and Pounds FX currency futures, prosecutors said.
Among Coscia's family, there was some feeling that the sentencing could have gone worse. During the hearing, Anthony Coscia, Michael Coscia's uncle and a counselor at a Catholic high school in Brooklyn, N.Y., quoted passages from Shakespeare and the Bible while speaking on behalf of his nephew's character.... "The judge seemed to show some compassion," the elder Coscia said as he left the courtroom.
Alaska joins ever-growing list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":
The criminal justice reform bill makes a number of very positive changes. A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.
Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91. The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.
For the past decade, criminal justice policy has been developed without data or research. That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.
Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country. Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.
Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services. Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade. The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).
These reforms are working in other states:
• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.
• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.
• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.
• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.
All of these states reduced their prison populations and reinvested in crime-reduction strategies.
The current approach in Alaska is not working. It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver. More time in the shop with the same limited tools won’t fix the car. Senate Bill 91 provides more tools.
About 9 in 10 of our prisoners will eventually return to our communities. Our task is to ensure proper supervision and treatment to change criminal behavior. Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.
Law Enforcement Leaders write letter to Prez candidates Trump and Clinton to urge sentencing reform
As reported via this press release from Law Enforcement Leaders to Reduce Crime & Incarceration, in a letter addressed "to Republican Donald J. Trump and Democrat Hillary Clinton, leading groups representing more than 30,000 current and former police chiefs, sheriffs, prosecutors, district attorneys, attorneys’ general and U.S. Attorneys from all 50 states call for sensible steps to address burgeoning prison populations." According to the press release, this letter "marks the first time the law enforcement community has united with one voice to ask major party candidates to support reducing imprisonment" and thus represents "a powerful reversal from law enforcement’s past support of rigid sentencing laws, and signatories asked the candidates to consider the expertise and perspective that led them to the change of heart."
The full letter is available at this link and it gets started this way
Dear Mr. Trump and Secretary Clinton:
We write to you as representatives of our nation’s largest law enforcement organizations. Collectively our membership includes more than 30,000 law enforcement professionals — current and former police chiefs, sheriffs, district and assistant district attorneys, attorneys’ general and U.S. Attorneys from all 50 states.
As the presumptive nominees for President of the United States, we hope that you will take into consideration the perspective of law enforcement as you set your policies. We believe there is an urgent need for the next Administration to help promote the public safety of this country, reduce recidivism, and reform sentencing policies.
As the men and women who dedicate our lives each day to protect this country’s people, public safety and the administration of justice is our utmost priority. Every day, we are required to make tough judgment calls. Sometimes, that judgment call involves locking-up individuals for a long period of time for a heinous crime that damaged a community. We want dangerous offenders off our streets, and behind bars. We want to make sure the people in the communities we serve are protected. Today we are proud that our country is safer than it has been in a generation, and we work hard every day to ensure it remains that way.
However, we also know that our burgeoning prison population is creating a new public safety challenge. Though this may seem counterintuitive, we know from our experience as law enforcement officials that over-relying on incarceration does not deter crime. As prison budgets have continued to rise, funding for state and local law enforcement has been slashed, negatively impacting innovative work in the field including diversion programs, updating information-sharing systems, and smart policing tactics. With finite prison space, we believe prison should be used for the most dangerous offenders.
Budget aside, law enforcement across the country has shifted to embrace rehabilitation and the opinion that certain individuals in our prison system are serving sentences that are too long for the crime they committed. We also realize that, as we see the same offenders reenter the criminal justice system time and time again, we must be creative and devise innovative programs to reduce recidivism, including job training, addiction counseling, and other productive activities.
Wednesday, July 13, 2016
Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools. Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge. The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:
In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."
Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.
Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing. Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....
Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.
The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "violates a defendant's right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment's scientific validity, or because COMPAS assessments take gender into account."
Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process. Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.
Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.
We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion.
Prior related posts:
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
What should we make of Donald Trump declaring himself the "law and order" and "compassion" candidate?
At the risk of prompting an excessive focus on politics over policy, I am genuinely interested in hearing reader thoughts on this recent Politico article, headlined "Trump: 'I am the law and order candidate'." Here are excerpts:
Hillary Clinton can add the title “secretary of the status quo” to her political résumé, according to Donald Trump, who on Monday also bestowed another moniker upon himself: “the law and order candidate.”
“We must maintain law and order at the highest level or we will cease to have a country, 100 percent,” he said during a speech in Virginia Beach, Virginia, in which he heaped praise upon America’s law enforcement officers. “We will cease to have a country. I am the law and order candidate.”...
“Hillary Clinton, on the other hand, is weak, ineffective, pandering, and as proven by her recent email scandal which was an embarrassment not only to her but to the entire nation as a whole,” Trump continued. “Not only am I the law and order candidate, but I am also the candidate of compassion, believe it. The candidate of compassion.”
Trump’s remarks backing America’s law enforcement officers came at the top of a planned speech in which he outlined plans to fix health care for U.S. military veterans and offered a 10-point proposal to reform the troubled Department of Veterans Affairs....
The presumptive Republican nominee was preceded at his rally by New Jersey Gov. Chris Christie, who likewise praised law enforcement. “We need a president who will once again put law and order at the top of the priority of the presidency in this country,” Christie said. “Our police officers, the men and women who stand each day to protect us need to understand that the president of the united states and his administration will give them the benefit of the doubt, not always believe that what they’ve done is somehow wrong.”
Two articles asking the hard questions about criminal justice reform circa summer 2016
These two recent pieces from two distinct sources ask, in their headlines, two astute questions about the prospects for significant criminal justice reform in the weeks and months ahead:
From The Marshall Project here, "Can Justice Reform Efforts Survive Dallas?"
From MTV news here, "Can Conservatives Make Criminal Justice Reform Happen?"
Tuesday, July 12, 2016
"Pokémon Go Craze Sparks Worries About Sex Offenders, Cybercriminals"
My students and regular readers know I am eager to assert that any and every aspect of modern law and life has a sentencing/crime and punishment angle. In service to that claim, I could not resist highlighting this new local NYC article which shares the headline of this post and demonstrates that the latest gaming craze in not immune from criminal justice concerns. Here are the (serious?) particulars:
The Pokémon Go app has been all the rage in recent days, but new concerns have mounted about criminals abusing the game. As CBS2’s Jennifer McLogan reported, there are worries that sex offenders might use the app to lure children, and cybercriminals might steal people’s information.
Sulma Rivas is part of a Pokémon Go scavenger hunt adventure craze. So are her three children. Rivas keeps a watchful eye. “I don’t want to do it when my mom’s not around, because I could get hurt,” said Mylie Rivas, 10.
Pokémon Go is exploding in popularity, and Babylon town officials have been monitoring hundreds of people of all ages circling the lake in Argyle Park -- with their heads down and their smartphones in hand. When asked if he was playing unsupervised, Ethan Fortaleza, 12, smiled and said, “Maybe.” Ethan said his parents dropped him off in a safe area. But county officials are worried about the luring component of the game.
With 38,000 registered sex offenders in New York state, police fear that it might be easy for someone to fake a Pokémon Go ID and stalk a child player. “The people who are the quickest to adapt to new trends in social media technology are criminals and predators,” said Suffolk County Executive Steve Bellone. Bellone wants Pokémon developer Niantic to install e-stop technology, making it tougher for predators to sign on and demanding more checks and balances.
After downloading the app, players are asked to sign up with their Google accounts, using existing credentials to ensure the process is fast and simple. But that can put at risk users’ emails, cameras, photos, and storage. That pool of data could be a boon for cybercriminals.
“I haven’t heard anything about that. That would be unfortunate,” said Samara Katini, 21. “I probably wouldn’t play the game if that was a real problem.”...
Ninatic said it is working closely with authorities to keep all players safe. The company said it has no plans to share the data it collects with third parties.
Some mid-summer highlights from Marijuana Law, Policy & Reform
Because federal statutory sentencing reform has stalled in Congress and with the Supreme Court now on its extended summer break, major new sentencing stories are relatively rare these days. In contrast, over at my Marijuana Law, Policy & Reform blog, I have been struggling greatly to keep up with all the marijuana reform news. These recent posts from the last few weeks highlight just some of the significant summer stories that seem worth following:
"Why Capital Punishment Is No Punishment at All"
The title of this post is the title of this provocative article by Jason Iuliano just recently posted to SSRN. Here is the abstract:
Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society’s most severe punishment.
In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.
This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.
Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions
As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:
Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.
Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.
“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”
Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.
“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”
Some older related posts on the Blagojevich case:
- You make the sentencing call: What sentence should Blago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- Insightful commentary questions why Blago is getting huge break from federal prosecutors
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
- Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
- "Ex-Gov. Rod Blagojevich sentenced to 14 years"
Monday, July 11, 2016
PBS widely premiering sex offender documentary "Prevert Park"
As detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:
Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction. It looks like your average trailer park, but this is the place 120 residents call home. Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.
There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years. But the film offers a mindset-challenging look at this deeply stigmatized category of criminals. According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”
The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.
A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children. Will says he was “fondled by a babysitter when I was 6 years old.” As an adult, he exposed himself to a young girl and spent several years in jail.
A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.” She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son. According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....
Pervert Park raises significant questions. Should America give these criminals a second chance? And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?
“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney. Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case. “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”
“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst. These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives. And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.
“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence? If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”
Spotlighting that the death penalty, practically speaking, is now really dying
BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months." Here is the start of a piece that merits a full read:
It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.
This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.
The pause on executions — since it is state-specific — won’t last forever. The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned. It isn’t, however, only that there have been no executions in the past two months. This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past. It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.
There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country. The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.
Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992. Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season. Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.
In short, this is an unprecedented moment in the modern era of the death penalty. Why, in the absence of any overarching federal prohibition on executions, is this so?
First Circuit finds sentence enhanced based on a song (and thrice longer than guideline range) substantively unreasonable
Thanks to Howard Bashman at How Appealing, I did not miss the interesting First Circuit panel ruling in Alvarez-Núñez, No. 15-2127 (1st Cir. July 9, 2016) (available here), declaring an above-guideline sentence substantively unreasonable. Here are excepts from an opinion that has a wordy flair that would justify reading in full:
In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant. Concluding, as we do, that this line-blurring undermined the plausibility of the court's sentencing rationale (and, thus, rendered the sentence substantively unreasonable), we vacate and remand for resentencing....
Evidence extrinsic to the protected words or conduct may make clear that a performance or artistic work speaks to a defendant's motive, state of mind, or some other attribute in a way that is relevant to sentencing. In the absence of such extrinsic evidence, the mere fact that a defendant's crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.
Evidence that might support such an inference is conspicuously lacking in this case. Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle. Nor is there any basis for a claim that they are unlawful in any respect. By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder. The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant's involvement in any other criminal activity. To the contrary, the PSI Report — accepted in this regard both by the government and the district court — confirms that, at age 34, the defendant had no adult criminal history.
The district court's conclusions — that the lyrics and music videos comprised "objective evidence . . . that this [crime] was not a mistake," that they reflected that the defendant had a history of involvement "with firearms, with violence, [and] with murders," and that they made it likely that the defendant possessed the gun for nefarious purposes — thus rested entirely on naked inferences drawn from the content of the lyrics and music videos....
Taking the lyrics and music videos as "objective evidence" of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record. Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record cannot stand.
Sunday, July 10, 2016
"Inmates in NY get an Ivy League education behind bars"
The title of this post is the headline of this lengthy CBS News piece. Here are excerpts:
Inside Building 82, down the hall from the cosmetology course, Columbia University Professor Christia Mercer is teaching philosophy. If education is said to free the mind, it is the only freedom a group of particular students in Bedford Hills, New York have. These students are inmates at the Taconic Correctional Facility in Bedford Hills.
"So having done Plato and thought about early Christianity, Roman notions of virtue, we now have a chance to really think seriously about Augustine and his views, and I think it's really pretty mind-blowing, right?" Mercer asked the class.
Perhaps more "mind-blowing" is the transformation from prisoner to pupil. Cecile Davidson is serving one to three years for grand larceny. "Right now we're working on Plato, Socrates, and just the thought, the mindset of Socrates before he went into prison," Davidson said.
"I believe Plato. I believe that if you separate the body from the soul, you can obtain that truth," said another student, Leah Faria, whose "truth" includes a second-degree murder conviction. Faria has been incarcerated 19 years and goes before the parole board for the first time in 2018....
Faria is one of nearly 900 students enrolled throughout New York state prisons in an education program, offering associates, bachelors and even Master's degrees from some of the country's most elite universities. Twenty-two colleges and universities — including Columbia, Bard, Cornell and Vassar — send professor behind walls in the empire state every week.
"It's basically pretty easy," said Columbia University Professor Mercer. Easy, because Mercer does not change the course much, even in a prison system where 50 percent of the inmates — one out of every two — didn't graduate from high school. "We did teach Aeschylus and Euripides and so on ... so I am not lowering my standards at all," Mercer said. "That would be an insult to them."
In fact, Mercer — a distinguished member of the faculty at one of the most prestigious universities in the land - admitted that even she has been schooled while behind bars, when teaching the play "Twelfth Night" by Shakespeare. "In all my years of thinking about the play, I've never heard anyone give an argument for why it was inappropriate to treat Malvolio in the way that he was treated," Mercer said. "It was just this astonishingly insightful analysis of this play in ways that I had never thought of before....
This fall, New York's education program will expand, over the objections of state lawmakers, who rebuffed Gov. Andrew Cuomo's request for more money. So instead, Cuomo teamed up with Manhattan District Attorney Cy Vance to divert $7.5 million in criminal forfeiture money to add at least 800 more students.
"This is a public safety issue. I know that data supports my decisions and therefore, I think the citizens of the state should understand that this makes sense in terms of community safety," Vance said.
According to the state, 39 percent of New York's inmates commit another crime once they get out. But with a college degree from the program, the recidivism rate slides to 16 percent - a drop of more than half. "They don't come back into our system. And that's really how we know it works," said Linda Hollmen, director of education for New York's Department of Corrections and Community Supervision.
Saturday, July 9, 2016
Notable sparring over sequence of capital trials for Charleston mass murderer Dylann Storm Roof
In this post not long after the racist mass murderer committed by Dylann Storm Roof, I flagged the possibility of a double capital prosecution by both the feds and South Carolina in this post. Now that, a year later, this prospect has become a reality, the logistical dynamics are presenting interesting legal issues. And this new Wall Street Journal article, headlined "Death Penalty Freeze Puts Charleston Church Shooting Trials in Conflict: State prosecutors say likelihood of execution gives their case precedence," explores some of this novel capital ground:
The alleged shooter of a South Carolina church congregation is scheduled to appear in state court next week amid a dispute over whether a state or federal case against him should go to trial first.
State prosecutors said in June their case against Dylann Roof should happen first because, in part, it is more likely to result in the death penalty. There is currently an effective moratorium on executions in the federal prison system, due to an internal review of the drugs used to execute prisoners.
South Carolina prosecutors charged Mr. Roof, 22 years old, with nine counts of murder and three counts of attempted murder last year for the June 2015 slaying of nine parishioners at an African-American church, and Solicitor Scarlett Wilson has said she would pursue the death penalty. Federal prosecutors, who charged Mr. Roof within weeks of the state indictment, are also seeking a death sentence.
Mr. Roof has pleaded not guilty but his lawyers have said he would plead guilty if the state or federal governments dropped requests for the death penalty. A lawyer for Mr. Roof didn’t respond to a request for comment.
The federal trial is scheduled to begin in November, while the state trial is slated for January. A hearing in state court is set for Wednesday to discuss the scheduling issues.
The dueling prosecutions have raised complicated procedural issues. Ms. Wilson said in court papers that because Mr. Roof is in the state’s custody, if he were sentenced to death in the federal trial, but received a life sentence in the state trial, the state would likely never relinquish custody of him, defeating any chance of an execution.
Ms. Wilson also argued that because the federal government last executed a prisoner in 2003, the state couldn’t trust that a death penalty verdict in the federal trial will actually result in an execution. “Because of the apparent unwillingness of the United States to implement a sentence of death, the state submits that the outcome of the federal trial has little to no relevance to the defendant’s ultimate fate,” Ms Wilson wrote. “For that reason, it disserves the victims to ask them to endure two trials, but the United States nonetheless has imposed its contrary will.”
Lawyers for Mr. Roof argued in court papers filed Wednesday that issues surrounding scheduling could be easily resolved if prosecutors would remove their request for the death penalty and accept Mr. Roof’s plea. “It was predictable that the unprecedented decision of both the state and federal governments to seek the execution of the same man at the same time would lead to scheduling problems,” defense attorneys wrote.
Federal prosecutors haven’t responded to the requests for the state trial to go first. In a letter to victims’ families Wednesday, South Carolina U.S. Attorney Beth Drake wrote, “While it may appear in court pleadings that the state and federal court are both working towards a speedy trial, at the end of the day, we are all after the same thing—justice.”
Mr. Roof’s attorneys have moved to dismiss the federal case, saying it ignores the division between state and federal jurisdictions.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Friday, July 8, 2016
More distrust, more hatred and more killing... sigh...
Ever eager to stay focused on sentencing issues and to blog only on topics related to my research expertise, I generally do not post about police-citizen encounters or mass shootings. And I do not have anything especially insightful to say about the awful sequence of events this past week in Louisiana, Minnesota and Texas. But maybe some readers have some thoughts to help everyone gain some extra perspective during a time when I just feel profound sadness about these recent events.
The demise of irreducible life sentences in the Netherlands
I am pleased to be able to provide this guest posting from Dirk van Zyl Smit, who runs the Life Imprisonment Worldwide Project at the University of Nottingham, concerning a big recent ruling from the Netherlands:
The Netherlands has long been an exception to the general European rule that all persons sentenced to life imprisonment must have a realistic prospect of release before they are too old or ill to again lead a full life in free society. There are only a small number of life-sentenced prisoners in the Netherlands, 32 at the last count, but they all serve sentences akin to US-style life without parole, and are rarely, if ever, released. On 5 July 2016, that position changed dramatically. The Hoge Raad, the Supreme Court of the Netherlands, ruled that the remote possibility of a pardon, which hitherto has been the sole mechanism by which Dutch life-sentenced prisoners theoretically could be released, was inadequate. The current pardon system did not provide them with a clear prospect of being considered for release and was therefore contrary to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.
In coming to this conclusion the Hoge Raad quoted extensively from the standards developed by the Grand Chamber of the European Court of Human Rights (ECtHR) in 2013 in Vinter and others v United Kingdom and in 2016 in Murray v The Netherlands but then set them out and developed them further in its own words. (The translations are my own.)
The Hoge Raad began cautiously (para 3.2), noting
that the life sentence is not inherently contrary to the provisions of art. 3 of the ECHR, even if it is fully executed. From the jurisprudence [of the European Court of Human Rights] however, it follows that life imprisonment cannot be imposed if it is not already clear at the time of imposition that in due course there will be a real opportunity to reassess the life sentence, which in the appropriate cases can lead to the shortening of the sentence or (conditional) release. This does not mean that providing an opportunity for review of the sentence will always lead to a reduction of the penalty. Reassessment can indeed also lead to a finding that there is no ground for reducing the sentence.
The Hoge Raad then explained the various conditions it regarded as essential prerequisites for a review of a life sentence (para 3.3):
In the review, the question that needs to be addressed is whether there have been such changes on the part of the convicted person and whether he or she has made such progress in their resocialisation that the continued implementation of life imprisonment is no longer justified. The criteria used in this context should not be so stringent that release is allowed only when a serious illness or other physical obstacle stands in the way of the further implementation of life imprisonment, or upon reaching an advanced age. The review must be based on information with respect to the convicted person as an individual as well as the opportunities offered for resocialisation. Moreover, at the time of the imposition of a life sentence, it must be clear to the convicted person to a sufficiently precise extent what objective criteria will be applied in the review, so that he knows what requirements must be met, if he wants - eventually – to be considered for a reduction of his sentence or for (conditional) release.
The point of departure in the future must be that the review must take place after no more than 25 years after the imposition of life imprisonment and that after that period the possibility of periodical re-assessment is required. The reassessment shall be surrounded with sufficient procedural safeguards. The case law of the European Court of Human Rights does not require that a provision to curtail a life sentence can only consist of a statutory periodic review of the sentence by a judge. That does not detract from the view of the Hoge Raad that assigning the reassessment to a judge in itself represents an important guarantee that the implementation of life imprisonment will take place in accordance with Art. 3 of the ECHR.
Finally, in order to provide a real opportunity for reassessment, it is important that the convicted person during the execution of the life sentence - even before the reassessment takes place - must be able to prepare for a possible return to society and that, related to this, possibilities for resocialisation should be offered within the framework of the implementation.
The very basis of this decision is a rejection of official Dutch policy on the treatment of life-sentenced prisoners, for until now they have not been offered opportunities for resocialisation, because it had been presumed that they would never be released. The prison regimes for these prisoners will have to change.
The remedy that the Hoge Raad put forward is equally drastic. It ordered the Dutch government to legislate in order to reform the law relating to life imprisonment so that it would meet the standards it had spelled out. Such reforms have to be introduced by 5 September 2017. The Hoge Raad will remain seized with the case until then, when it will again consider the matter and decide whether the legislative reform meets the standards it has now set.
The decision of the Hoge Raad of 5 July 2016 is recognition that Dutch jurisprudence on life imprisonment must move forward to take account of the development in European human rights law that has led to a clear rejection of irreducible life sentences. It stands in contrast to the much more conservative approach of the English Court of Appeal, in R v Mcloughlin, which has insisted that English provisions that would allow life-sentenced prisoners, subject to a whole life order, to leave prison only when ill or dying are sufficiently flexible to be regarded as a form of release to meet the standards of Art. 3 of the ECHR. This interpretation of European standards by the Court of Appeal has been challenged before the Grand Chamber of the ECtHR in Hutchinson v the United Kingdom. Judgment in this last case, which was argued in October 2015, is keenly awaited. What remains to be seen is how the British authorities, including the UK courts, will respond if the ECtHR follows the trend that the Dutch Supreme Court has endorsed and rejects the interpretation of the Court of Appeal. The recent British referendum in favour of leaving the European Union does not affect the legal status of the United Kingdom as a party to the ECHR. However, there has been much press speculation that a decision against the United Kingdom in this latest case about irreducible life sentences may prompt a reconsideration of Britain’s relationship with the ECtHR and lead eventually to a formal withdrawal from its jurisdiction. The measured decision of the Hoge Raad on 5 July 2016 is an example of a less confrontational approach to European jurisprudence by a national apex court. One can only hope that the courts and indeed the government of the United Kingdom will learn from it.
Thursday, July 7, 2016
"Can Obama Pardon Millions of Immigrants?"
The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:
When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”
However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”
The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....
It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.
A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....
President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.
Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.
President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.
Sharp criticisms of bladerunner Oscar Pistorius being sentenced only to six years for murdering his girlfriend
A high-profile defendant, Oscar Pistorius, was resentenced this week after the South Africa's Supreme Court of Appeal had concluded he should be convicted of murder and not just manslaughter for shooting girlfriend Reeva Steenkamp. Regular readers may recall the trial judge seemed to accept his self-defense claims when first giving him only a five-year sentence. This time around, the sentence only was increase by a year, and more than a few commentators have expressed disappointment in this result:
Via Eric Macramalla at Forbes here, "Judge Masipa: Her Flawed And Appalling Sentencing of Pistorius"
Via Ranjeni Munusamy at The Guardian here, "Oscar Pistorius sentence: an homage to celebrity and white privilege"
My complete ignorance about South African sentencing laws, procedures and practices lead me to be unable to comment intelligently on either the Pistorius resentencing or these sharp reactions to it. But this case provides still more evidence that sentencing outcomes, especially for high-profile figures, are often controversial no matter where in the world they take place.
Prior related posts:
- "Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
- Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
- Prosecutors in South Africa indicate they plan to appeal Pistorius outcome
- Now a murderer, Oscar Pistorius facing resentencing
Does Massachusetts have a problem with under-punishment of convicted rapists?
The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:
More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories. A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.
They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.
“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston. Rapists should not be given leniency when it comes to sentencing, Bruno said.
In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines. The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....
National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....
The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.
Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain. A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.
Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial. It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.
In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.
In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”
Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system. “The idea that we’re being soft on rape as a society is just not true,” he said.
Wednesday, July 6, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Split Eighth Circuit panel affirms three-month sentence for Iowa egg executives whose company caused salmonella outbreak
As reported in this AP piece, the Eighth Circuit today rejected an array of challenges to upheld short jail sentences for two egg industry executives who pleaded guilty to misdemeanor corporate crimes. Here is more about the case and the ruling:
In a 2-1 decision, the 8th U.S. Circuit Court of Appeals upheld three-month jail sentences issued last year to 82-year-old Austin "Jack" DeCoster and his son Peter DeCoster, 53.
The DeCosters were aware of unsanitary conditions at their sprawling Iowa egg farms but failed to improve them before the outbreak, which sickened up to 56,000 people and left some with permanent injuries, Judge Diana Murphy wrote. "We conclude that the record here shows that the DeCosters are liable for negligently failing to prevent the salmonella outbreak," Murphy wrote, joined by Judge Raymond Gruender.
The case, a rare prosecution against those responsible for an outbreak of foodborne illness, was closely watched by advocates for consumer safety and food and drug manufacturers. The Justice Department praised the ruling, saying the DeCosters disregarded basic food safety standards for years and deserved jail time....
At issue was whether corporate executives could face imprisonment for violating the federal Food, Drug, and Cosmetic Act, which allows "responsible corporate agents" to be held criminally liable even if they were not aware of the wrongdoing. The DeCosters, who owned and operated Quality Egg LLC, had pleaded guilty to violating the law by introducing adulterated eggs into interstate commerce. They said they did not know the eggs were contaminated but acknowledged they were in a position to stop the problems had they known.
U.S. District Judge Mark Bennett ordered the jail time in April 2015, saying they knew or should have known about the risks posed by the presence of salmonella in and around millions of egg-laying hens. But he allowed the DeCosters to stay free while they appealed the sentences, which they argued were unconstitutional and unreasonably harsh.
Business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, filed friend-of-the-court briefs backing the DeCosters' appeal. They argued that it would be unfair to send corporate executives to prison for violations that they were unaware of or that were committed by subordinates.
Murphy rejected those arguments, saying Congress did not require executives to have known about the violations to be subject to the food safety law's criminal penalties. She said the jail terms were relatively short, within federal guidelines and "not grossly disproportionate to the gravity of their misdemeanor offenses." Gruender added in a concurring opinion that the DeCosters were not being punished for the acts of others, saying their own failure to take steps to prevent the outbreak was to blame.
Dissenting Judge C. Arlen Beam said prosecutors failed to show that the DeCosters had criminal intent, and therefore "there is no precedent" for sending them to jail. He said they were not aware the products were tainted with salmonella and that they immediately recalled hundreds of millions of eggs once the outbreak was confirmed "at great expense."...
Quality Egg paid a $6.8 million fine after pleading guilty to felony charges of shipping eggs with false processing and expiration dates and bribing a U.S. Department of Agriculture inspector to approve sales of poor-quality eggs.
The full ruling in US v. DeCoster, No. 15-1890 (8th Cir. July 6, 2016), is available at this link.
Examining Justice Sonia Sotomayor's unique SCOTUS voice on criminal justice issues
This past week as brought these two notable examinations of the work of Justice Sonia Sotomayor on criminal justice issues:
From the New York Times here, "In Dissents, Sonia Sotomayor Takes On the Criminal Justice System"
From Slate here, "The court’s leading carceral critic: Why Sonia Sotomayor dissented on gun ban for domestic abusers: Sotomayor's vote reflects a consistent criticism of overcriminalization, excessive prosecution and abusive policing"
Might the Nebraska death penalty repeal referendum in 2016 be even more important symbolically than the dueling California capital initiatives?
As highlighted in prior posts here and here, death penalty opponents and supporters will surely be focused on California during the 2016 election season as voters there will be have a clear capital punishment reform choice between "end it" and "mend it" based on two competing ballot proposals. But this local article from Nebraska, headlined "Death penalty debate heats up," provides a useful reminder that citizens in a very different state will also be voting on the future of the death penalty in their jurisdiction. Here are the basics:
Nebraskans will go to the polls four month from now and vote for an array of issues-one being whether or not to reinstate the death penalty in Nebraska. The legislature voted 30-19 to repeal it in the Spring of 2015, but supporters of capital punishment were able to get enough signatures to get the issue on the November ballot.
“It's a very complicated system, the system is broken and it doesn't work,” said Retain a Just Nebraska campaign manager Darold Bauer [campaign website here]. “The repeal of the death penalty was very unpopular across the state,” said Rod Edwards, state director for Nebraskans for the Death Penalty [campaign website here].
Those for the death penalty say murder victim’s families want justice. “They want that just penalty for the people who killed their loved ones,” said Edwards.
However the group Retain a Just Nebraska said the system doesn’t work and actually harms murder victim’s families. “Eliminate years and years of appeals, and eliminate the possibility of executing an innocent person,” said Bauer.
Both sides of this issue are now ramping up their campaigns this summer coordinating their army of volunteers and getting their message out. “We are re-energizing those volunteers we are working with our Facebook followers to make sure they get the message out and working with those 166-thousands signature gathers to expand that to an electorate,” said Edwards.
Even churches are getting involved-handing out materials urging their people to vote for a specific item. This past weekend, some parishioners likely saw a bit of politicking in the pews. “We are getting help from a number of different churches and different denominations, we are not turning anyone away, if they believe what we do in eliminating the death penalty, we welcome their support,” said Bauer.
Both campaigns will start airing ads on TV and radio soon.
Because California has the nation's largest death row (as well as the largest population of any state in the nation), the outcome of the death penalty reform initiatives in that state will, practically and politically, be far more consequential in the short-term than whatever happens in Nebraska. But, as the question in the title of this post is meant to suggest, I think the vote in Nebraska could have more symbolically importance and long-term significance for the future of the death penalty in the United States.
California is, of course, a "deep-blue" state and its quirky and complicated history with the death penalty will make it relatively easy for whichever side that loses in November to claim that the result is not really representative of the views of the national as a whole. But Nebraska is a "deep-red" state, and its legislative repeal of the death penalty was driven by conservative elected officials. If Cornhusker voters embrace capital repeal at the ballot this November, I think death penalty abolitionists can and will assert forcefully that this vote shows that even conservative citizens want to see an end of capital punishment int he US. But if Nebraska voters reject the repeal, and especially if they do so by a large margin, supporters of capital punishment can and still will be able to point to the outcome as proof that most voters in most states still support the punishment of death for some murderers.
Deep dives into realities of sex offender registries two decades after they started to proliferate
Vox has these two lengthy new pieces looking at the realities of sex offender registries:
Here is an extended excerpt from the first of these pieces:
The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....
Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.
Yet the sex offender registry is still going strong.
It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.
Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.
Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.
This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.
Tuesday, July 5, 2016
Detailing how challenges go up for federal probation officers as the federal prison population does down
The Wall Street Journal has this interesting new article discussing one of many echo effects of a large number of federal prisoners being released early in recent years due to various federal sentencing developments. The article is headlined "Changes in Sentencing Policy Raise Pressure on Probation Officers: Wave of early inmate releases raises concerns over preventing relapses among high-risk population." Here is how it gets started:
Karrie Springstead tries not to stand directly in front of the ex-inmate’s apartment door as she knocks. The veteran probation officer doesn’t expect trouble, but she never knows who might be on the other side. “It’s the third party that makes me a little more leery,” says Ms. Springstead, 31 years old. “It’s the people you don’t know, and they don’t know me.”
Ms. Springstead is one of 5,500 federal probation officers who oversee roughly 180,000 people across the country. The current push for shorter prison sentences is putting more work on the force, federal officials say, and raising concerns that critical details might be missed that could prevent relapses among a high-risk population.
Overhauling the criminal-justice system, including shorter sentences, is a hot topic in Washington, with some Democrats and Republicans increasingly coalescing behind a view that incarceration times have gotten too long. Even before any major bills have passed, however, federal officials have begun chipping away at sentences. Since 2010, 14,100 people have been freed early because of changes in sentencing law and policies, according to the Administrative Office of the U.S. Courts, and the federal probation case load has increased 7% since 2010. In the same period, the budget of the U.S. Office of Probation and Pretrial Services Office rose 0.5%, to $902 million.
The proportion of federal ex-inmates whose probation has been revoked dropped to 27% in 2015 from 29% in 2010. That decline has been attributed in part to improved risk assessments that are more sophisticated than previous ones and include a wider array of factors, from an offender’s education levels to family makeup.
But probation officials say the drop is due chiefly to the fact there are fewer officers, relative to the number of ex-inmates, to spot violations, so more offenders are remaining free. “There is a tie between revocation rates going down and a shortage of officers in the community checking on people,” said Steve Skinner, chief of the federal probation office in Oklahoma City, where Ms. Springstead works....
A change in 2014 by the U.S. Sentencing Commission to the way drug sentences are calculated shows the potential impact. The federal probation office asked for a year to prepare for the change, and hired 388 new probation officers, though attrition cut the net gain to 150, said Matthew Rowland, who heads the office. As a result of the sentencing change, a service that usually gets about 1,130 new charges a week got about 5,000 in the space of a weekend around last Nov. 1. Another 26,000 will be released early in coming years due to the change, according to the U.S. Sentencing Commission.
Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?
Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing. In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.
I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email." As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." It includes these key passages:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
UPDATE: The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement:
- Q: Did Director Comey Make a Mistake?
- Claims v. Findings on the Clinton E-mail Issue
- Never Hillary
- Hillary Clinton Gets a Pass
Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences
The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:
Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.
Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.
There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.
But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.
Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.
As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.
“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.
New Philippines Prez wasting no time executing deadly "tough on crime" plans
In this post a couple of months ago, I noted then Philippine President-Elect Rodrigo Duterte was talking about bringing back capital punishment for drug users(!) and about give police shoot-to-kill powers to go after mobsters and drug dealers. As now reported in this Newsweek article, President Duterte has followed up his talk with action his first week on the job. The article is headlined "30 'Drug Dealers' Executed in Duterte's First Four Days as President," and here are the remarkable details:
The Philippines’s new president, Rodrigo Duterte, appears to be living up to his nickname after less than a week in office. Police in the island country have said that some 30 suspected drug dealers have been killed since Duterte — dubbed The Punisher for his hardline stance on drugs — was sworn into office Thursday.
Formerly the mayor of the southern town of Davao, Duterte, 71, was elected in May following an explosive campaign in which he vowed to kill thousands of criminals and “fatten the fish” in Manila Bay in the capital Manila by dumping their bodies there. Following his oath, Duterte urged his supporters to do away with drug traffickers, reportedly saying: “Go ahead and kill them yourself as getting their parents to do it would be too painful.”
The police chief for the Manila region, Oscar Albayalde, said that five drug dealers were killed following a gun battle with police Sunday, Reuters reported. Three other people were killed in other parts of Manila Sunday, while 22 were killed outside the capital. Police also made a seizure of 180 kilograms of methamphetamine — known locally as shabu — worth around 900 million Philippine pesos ($19 million), according to national police chief Ronald dela Rosa.
In total, more than 100 people have died — most suspected drug dealers, rapists and car thieves — in police operations since the election on May 9.
Prior related post:
Sunday, July 3, 2016
"Utah Senator Meets Inmate Who Inspired Sentencing Law Rewrite"
The title of this post is the headline of this recent Roll Call article reporting on a notable meeting between a prominent advocate for federal sentencing reform and a prominent (former) "poster child" defendant representing the need for reform. The article includes a short video, and here are excerpts of a story that seems worth profiling on a weekend for celebrating US freedoms:
Sen. Mike Lee has told the story of Weldon Angelos’ prison term hundreds of times, describing the 55-year sentence over three marijuana sales in 72 hours as “crazy” and “nuts.”
An improbable set of events brought the two men together Wednesday in the Utah Republican's office on Capitol Hill. The recently freed Angelos hugged the lawmaker who made him a living symbol of the push to overhaul the nation’s sentencing laws.
“I’ve been telling his story a lot,” Lee said during the meeting. “A lot of the time I was telling this good story, I would sit there and wonder, actually, I wonder if he’s going to care if I’m using his name this frequently.”
“But your story was very helpful in explaining to people why we need this legislation and why we need to reform the law,” Lee told Angelos, who has two sons, ages 19 and 17, and a daughter, age 13.
Angelos, 36 and the founder of a hip-hop music label, said he met others in prison with unjust sentences. He plans to tell his story himself in Washington in support of the bipartisan bill. The legislation appears unlikely to pass in this election-shortened year, and amid disagreements among Republicans in both chambers.
“It kept me together, and my family,” Angelos said to Lee. “Your support was amazing and I just wanted to come here and thank you personally for supporting me and your commitment to criminal justice reform.” Lee has credited Angelos' case, which has attracted national attention, for sparking his work to change sentencing laws.
The legal action that freed Angelos on May 31 is somewhat mysterious and extraordinary. There is recent action in his court case — but no sign of a judge’s order releasing him. Lee said President Barack Obama set in motion a way to reopen the case and seek his release. It wasn’t a commutation or pardon but “another type of action,” Lee said. The senator, a former assistant U.S. attorney, is among dozens of people who have urged Obama to commute Angelos’ sentence, including former U.S. District Judge Paul Cassell, who sentenced Angelos.
That shows what a lot of extra attention on a case can accomplish, said Molly Gill, government affairs counselor for Families Against Mandatory Minimums, a group that flew Angelos to Washington this week and is working to end the types of sentencing laws that resulted in his sentence. “But it also shows there are a lot a people who don’t have and are never going to have that level of support,” Gill said.
Lee said Angelos’ release does not undercut the need for the legislation, since there are others out there who can’t get relief like Angelos. “We know there’s more to be done,” Lee said. A provision in the bill would prevent prosecutors from stacking mandatory minimum sentences related to certain gun possession crimes together in one case. It would reduce that mandatory minimum sentence from 25 years to 15 years. It would also allow judges to reduce the sentence for prisoners who are in Angelos’ situation.
Angelos was a first-time offender who was arrested in 2002 after Salt Lake City police set up controlled drug deals between Angelos and a confidential informant.... A jury convicted him of 13 charges, including three counts of possession of a gun in furtherance of a drug trafficking crime. Angelos in 2004 received a five-year mandatory minimum sentence for the first charge of possession of a firearm in furtherance of a drug trafficking crime; a consecutive 25-year sentence for the second, and another consecutive 25-year sentence for the third, FAMM said.
After nearly 12 years in federal prison, Angelos was surrounded Wednesday by the dark wood and art in Lee’s office. “It’s just overwhelming,” Angelos said. “I feel like I’m in a dream.”
Prior related post:
- Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Draft DNC party platform calls for abolition of death penalty ... which means?
In this post last week, I wondered whether it really mattered what the traditional political parties had to say about criminal justice issues in their party platforms. But this latest platform news as reported by CNN from the Democratic National Committee will surely matter to those who are eager to see abolition of the death penalty in the United States:
Democrats are calling for an end to capital punishment. The latest draft of the party's platform, released Friday, says the death penalty "has proven to be a cruel and unusual form of punishment" that "has no place in the United States of America."
The inclusion of the provision represents a victory of sorts for Vermont Sen. Bernie Sanders -- a longtime opponent of the punishment who has said he is remaining in the presidential race in order to fight for progressive causes. Sanders offered mild praise for the platform Friday evening, tweeting, "The Democratic Platform includes some accomplishments that will begin to move this country in the right direction."
Presumptive Democratic nominee Hillary Clinton has supported the death penalty in the past, albeit on a limited basis, suggesting that there could be cases for "very limited use" of the punishment in "horrific" terrorist crimes. She was confronted over the issue during a CNN-TV One town hall event in May by an exonerated former death row inmate who spent 39 years in jail for a murder he did not commit.
For a host of reasons, I would be very surprised to hear Hillary Clinton now express opposition to the death penalty for the likes of Boston Marathon bomber Dzhokhar Tsarnaev or even Charleston mass murderer Dylann Roof. Thus, it would seem the DNC is charting a path toward adopting a party platform that will not be fully embraced by its Prez nominee. And that, in turn, means .... I have no idea.
Saturday, July 2, 2016
"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"
The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants. An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants. It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability. And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions. Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating. Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.
Can and will big data help reduce mass incarceration?
The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:
The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.
“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today. Taking a closer look at the data, she said, can help identify who those people are. In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early. That intervention led to a 40 percent reduction in the county jail population. “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”
Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help. As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America. The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”
Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.
In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier. Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly. Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors. As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.
Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country. After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?
"Should a juvenile sex offender be locked up indefinitely?"
The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:
Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.
But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."
Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....
In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.
And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.
Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.