Wednesday, November 5, 2014
Is major federal sentencing reform possible now that Republicans have full control of Congress?
As the polls had come to predict in the weeks leading up to Election Day 2014, voters have now decided to put Republicans in control of both houses of Congress. Way back in this post in July 2013, I asked the question "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?," and now we are on a path to find out.
Of course, with respect to sentencing reform and so many other federal legislative issues, a whole lot will depend on whether and how a Republican-controlled Congress wants to work with or work against the lame-duck President Obama. Ever the hopeful optimist, I believe that Republicans in the new Congress will be looking to pass some bills that President Obama will sign into law and that at least some sentencing reform bills will be in this mix.
Some recent related posts:
- Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
- "4 Reasons Conservatives Are Embracing Prison Reform"
November 5, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 4, 2014
Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
In this post this morning, I noted that the Supreme Court is finally due to get back around to working on important criminal justice issues with oral arguments scheduled in Yates v. United States, No. 13-7451 and in Johnson v. United States, No. 13-7120. I now see that the always great SCOTUSblog now has up these two new posts providing detailed argument previews:
On Johnson from Rory Little, "Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?"
On Yates from Lyle Denniston, "Can plain language be vague?"
In addition, as religious blog readers may remember, another view of the ACCA issues in Johnson was covered in this space a few weeks ago via this SCOTUS preview guest-post by Professor Stephen Rushin titled "Measuring the Dangerousness of Felonies for Sentencing Purposes."
US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska
As noted in this post from last week, the start of November2014 marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782. At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district. I recommend the whole post, from which these excerpts are drawn:
I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska. We are a small district with a large criminal case load, especially including drug cases. As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court. Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.
With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer. After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....
Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender. They have cooperated nicely, and have established internal operating protocols between them. After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan. Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first. Offenders who are eligible later receive attention later.
Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right. A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines. That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted....
After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached. Assuming a stipulation is reached, it will be filed. After that, and without a hearing, relief will normally be granted. If no stipulation can be reached, then in my cases a hearing will be held.
It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard. Whether or not the defendant will be present at such a hearing has yet to be determined by me. In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify. It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter. However, in the huge majority of cases, this will not be necessary.
In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work. We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.
Will Election 2014 speed up or slow down the marijuana reform movement?
This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot:
There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana. In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana. Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.
While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream. The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.
At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016. And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project. “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz. “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”
Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.
Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:
"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"
The title of this post is the title of this notable new research report just released by the Robina Institute of Criminal Law and Criminal Justice. Via the Robina Institute at this webpage, here are the basics of the report's coverage and contents:
The Robina Institute is pleased to present the publication of Profiles in Probation Revocation: Examining the Legal Framework in 21 States, a close look at probation revocation practices in twenty-one states and the Model Penal Code. The first publication of the Probation Revocation Project, Profiles on Probation Revocation, allows for a comparison across selected jurisdictions. This report reveals a wide variation in probation practices in the United States and we hope it will further the dialogue on community supervision and probation practices.
This publication is the first in a series that will be produced by the Probation Revocation Project. The focus of this publication is the legal framework of probation: that is, how have the legislature and courts defined the purpose and functions of probation in each state? The focus of one or more subsequent publications will be how probation actually works within that legal framework.
In addition, I received from one of the authors of the report this more extended summary of its coverage:
The report compiles — in a convenient format — the results of a yearlong research project conducted by the Robina Institute on the laws relating to probation revocation in 21 American states. By leafing through the volume’s four-page “legal profiles,” readers can easily see how much variation exists in statewide laws of probation and probation revocation, while zeroing in on issues of greatest interest. Whether a reader’s jurisdiction is included in the report’s 21 states or not, the legal profiles contain a wealth of information that will allow for comparison with one’s own system.
The focus of the report is probation revocations and what leads up to them. Each legal profile describes a particular state’s approach to issues collected under twelve headings concerning probation. These are: Definition and Purpose, Forms of Probation, Length of Term, Early Termination, Supervision, Conditions, Modification of Conditions, Extension of Probation Term, Revocation Procedures, Legal Standard for Revocation, Revocation and Lesser Sanctions, and Appeal. The selected topics embrace aspects of the use of probation that may contribute to (or, conversely, reduce) revocation rates or the numbers of probationers who enter revocation proceedings.
Each profile begins with the nature of the probation sanction itself, including lengths of term and the burdens placed on probationers through sentence conditions. These are the early precursors of revocation rates. The profiles also focus on what happens during the probation term, and how the law allows the terms of conditions of probation to lighten or grow more restrictive in individual cases. For example, legal arrangements during the probation period that encourage probationers to succeed — or at least do not impede their success — will have an impact on revocation numbers. Finally, the profiles give close attention to each state’s probation revocation process itself, including the legal grounds for revocation, the identity of the ultimate decisionmaker (judicial versus administrative), rules for hearings, procedural rights that accrue to the probationer, and the range of sanctions that may be imposed after a sentence violation is proven or admitted.
The report relies on official legal source materials such as statutes, court rules, caselaw, administrative rules and policies, and publicly-available documents. The report seeks to describe, more or less, the “law-on-the-books,” while realizing that the official sources do not necessarily reflect actual practices of probation supervision and revocation on the ground. Even so, the report provides new and valuable comparative information about statewide legal superstructures for probationary sentences. While not a full portrait of what happens in individual states, the report illuminates crucial legal boundaries within which local and case-specific discretion must be exercised.
SCOTUS hears argument in two notable federal criminal justice cases this week
Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws. Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:
Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.
Issue: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.
Monday, November 3, 2014
Why I believe criminal justice reform is on the ballot this year ... and reflected in anti-Obama sentitments
The title of this post is designed as something of a retort to this interesting new Daily Beast commentary by Inimai Chettiar and Abigail Finkelman. The piece is headlined "Why Isn’t Prison Justice on the Ballot This Tuesday?," and here are excerpts (with my emphasis added):
Whichever party wins control of the U.S. Senate, voters can wince at the prospect of continued polarization and gridlock. But one issue, intriguingly, seems ripe for genuine bipartisan cooperation: criminal justice reform. Yet, partly because it has become less controversial, discussions about criminal justice policy have been absent from the campaign trail. This silence creates the risk that a moment of promise will become a missed opportunity for change.
The fact that criminal justice policy is not a campaign issue is, itself, noteworthy. Consider it Sherlock Holmes’ dog that didn’t bark. For decades, politicians vied to be the most punitive, from the 1977 New York City mayoral race, which improbably turned on the issue of the death penalty (over which a mayor has no power) to the 1994 referendum that passed “three-strikes-and-you’re-out” in California. The 1988 presidential race is rightly remembered for its focus on demagogic and racially coded appeals....
But times have changed, and “tough on crime” has been replaced with “smart on crime.” In the last decade, states as disparate as Texas, New York, Kentucky, and California have instituted reforms to reduce their prison populations and ease up their harsh sentencing laws. The White House just launched a major initiative to implement a more modern, sensible drug policy. Even Congress passed a law reducing the disparity between crack and powder cocaine sentences. And Americans overwhelmingly support eliminating mandatory minimum sentences for nonviolent drug offenders.
Yet, by and large, candidates have steered clear of criminal justice reform this election cycle. Perhaps they’re fearful of being painted as soft on crime. Or perhaps they simply don’t care enough about the issue to take a position.
Check out the issues pages of the websites of Senate candidates in the hottest races. Neither Michelle Nunn nor David Perdue, the two major Senate candidates in Georgia, talk about criminal justice reform. Neither do Mark Udall and Cory Gardner in Colorado. Or Joni Ernst and Bruce Braley in Iowa. In fact, you’d have to look far to find a candidate who makes even the most pro forma nod to the issue.
And that’s too bad, because not only is criminal justice important on its own, but because it impacts so many other important issues. Voters consistently list the economy and inequality as top concerns. The current system of mass incarceration costs governments around $260 billion annually; that’s about half the 2014 federal deficit. In fact, it’s among the largest drivers of economic inequality in the United States. Finding employment or housing can be nearly impossible with a criminal record. Locking up the primary breadwinner can push a family from working-class to impoverished. And children growing up with incarcerated parents too often get pulled into the system themselves....
Politicians and candidates cannot be allowed to remain silent on one of the largest human rights issues on American soil. But they also can’t be allowed to limit themselves to bromides about wanting reform without laying out next steps, and taking them. After all, some officeholders still resist needed changes, even as others link arms for reform.
Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) may have drawn wide attention and praise for their REDEEM Act. But the Smarter Sentencing Act of 2014, which went further and was cosponsored by Ted Cruz and Elizabeth Warren, among others, was blocked by a bipartisan group of senators. Similar battles are unfolding in state legislatures. But, as always, there’s a way to get legislators to change their actions: threaten to kick them out.
We’ve missed the chance to make mass incarceration an issue in 2014. But a few weeks ago, Bill Clinton predicted the issue would play prominently in the 2016 presidential election. Let’s hope he’s right. But such a drastic change in election politics won’t happen unless we demand to know where candidates stand on criminal justice. We must ask why they’re holding up bills, and if they’re only paying lip service to reform.
We need to know what they will do — or why they’re not doing anything — so that the United States no longer wears the scarlet letter of being the largest jailor in the world. And if they can’t answer, hold them accountable.
I have emphasized key phrases above which I believe serve as justifiable criticisms of one particular politician this election cycle: President Barack Obama. As regular readers know, I have long been talking about what I think President Obama could and should be doing in response to mass incarceration. On Inauguration Day 2009, in this post, I asked "Is it too early to start demanding President Obama use his clemency power?". Similarly, in post after post and post, I have highlighted that Prez Obama and others in his administration have been much more willing and eager to "talk the talk" than to "walk the walk" when it comes to criminal justice reform.
In other words, in my view President Obama is the politician who should be getting the most criticism for, in the words of this commentary, being content to spew "bromides about wanting reform without laying out next steps, and taking them," for missing "the chance to make mass incarceration an issue in 2014," and for helping to ensure the United States still "wears the scarlet letter of being the largest jailor in the world." And, like Inimai Chettiar and Abigail Finkelman, I want this politician to be held accountable. And, if polling and predictions about a Republican surge on election day tomorrow are accurate, it does appear that President Obama and his party are going to be held accountable for their failings in this regard.
(Side note: I also think Prop 47 in California as well as the marijuana initiatives on the ballot in a number of states and localities serve as another way that "prison justice" can be seen as being on the ballot this year.)
Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"
Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:
On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.
For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....
Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.
In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.
As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”
This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?
"Narcotics Prosecutors as Problem Solvers"
The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN. Here is the abstract:
When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose. He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date. He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.
Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"
Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang. His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system. But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone....
Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.
But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.
Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).
Prior related posts on Judge Rakoff's commentaries:
- "Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"
- Judge Rakoff calls for fraud guidelines to be "scrapped in their entirety" in favor of a "non-arithmetic, multi-factor test"
- Thoughtful response to Judge Rakoff's call to scrap fraud guidelines
Sunday, November 2, 2014
Interesting review of the (too cautious?) work of California's Attorney General
The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:
Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional. Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."
That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....
On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.… [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."
Harris, 49, bristles at the suggestion that she is afraid to take stands. "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview. She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....
During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy. She also has created units to focus on cyber-crime and cyber-privacy. In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights. In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed. He pointed to a study that blamed logjams in the system on various factors.
Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law. If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court. If she decided against an appeal, the death penalty in California would probably end. "We will have to see what the court rules," Harris said, without elaborating on her thinking.
She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division. Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."
When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris. "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...
[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"
Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.
She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."
"Crashing the Misdemeanor System"
The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:
With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.
Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.” Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts. Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively. As a result, many cases end in a quick guilty plea with little or no jail time. The “broken windows theory” suggests that everyone benefits from such efficiency.
Yet the effect of misdemeanor convictions is anything but minor. A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail. But this conviction can, and does, lead to eviction from public housing. It can, and does, pose a bar to showing “good moral conduct” for citizenship. And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks. The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life. Mass misdemeanor processing thus harms the individual, his family, his community, and society.
Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself. Such a “crash” of the criminal justice system would not be dramatic. Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight. The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing. Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.
Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis. Part II describes the potential role for defense counsel in such an institutional response. Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system. Part IV explores arguments for and against efforts to crash the existing misdemeanor system.
Following-up in Maryland after court rules some sex offenders not subject to new registration requirements
This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:
The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe. Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.
But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.
The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request. Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.
Most have been stripped out because of a decision by Maryland's highest court. That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.
Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases. In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.
But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...
While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes. "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."
Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.
What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives. In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice. Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.
Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights.... The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.
Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....
Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list. The attorney general's office is examining the cases and will fight in court when it sees the opportunity.
And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....
Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes. Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate. "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."
Saturday, November 1, 2014
Documenting modern state investments in schools and prisons
As reported in this Huffington Post piece, headlined "States Are Prioritizing Prisons Over Education, Budgets Show," a new analysis of state-level spending highlights that states have devoted taxpayer resources in recent years a lot more to prisons relative to schools. Here are the basics from a new report via the HuffPost's summary:
If state budget trends reflect the country's policy priorities, then the U.S. currently values prisoners over children, a new report suggests.
A report released this week by the Center on Budget and Policy Priorities shows that the growth of state spending on prisons in recent years has far outpaced the growth of spending on education. After adjusting for inflation, state general fund spending on prison-related expenses increased over 140 percent between 1986 and 2013. During the same period, state spending on K-12 education increased only 69 percent, while higher education saw an increase of less than six percent.
State spending on corrections has exploded in recent years, as incarceration rates have more than tripled in a majority of states in the past few decades. The report says that the likelihood that an offender will be incarcerated has gone up across the board for all major crimes. At the same time, increases in education spending have not kept pace. In fact, since 2008, spending on education has actually declined in a majority of states in the wake of the Great Recession....
Michael Mitchell, a co-author of the report and a policy analyst with the Center on Budget and Policy Priorities, suggested that education spending could actually help lower incarceration rates. “When you look at prisoners, people who get sent to prison and their educational levels, [the levels are] typically much lower than individuals who are not sent to prison," he told The Huffington Post. “Being a high school dropout dramatically increases your likelihood of being sent to prison.”
“Spending so many dollars locking up so many people, those are dollars that inevitably cannot be used to provide pre-K slots … or financial aid for those who want to go to college,” Mitchell added.
The report suggests that states' spending practices are ultimately harming their economies, while not making the states especially safer. The authors ultimately conclude that if “states were still spending the same amount on corrections as they did in the mid-1980s, adjusted for inflation, they would have about $28 billion more available each year for education and other productive investments.”
“The types of investments to help people out of poverty and break that school-to-prison pipeline are investments in early education, helping youth stay in school and getting them college campuses,” said Mitchell.
The full 21-page report from the Center on Budget and Policy Priorities, titled "Changing Priorities: State Criminal Justice Reforms and Investments in Education," can be accessed at this link.
Notable account of all the advocacy and interests surrounding California's Prop. 47
Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:
The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.
Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment. The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.
Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.
"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47. "We are hoping it will signal that we don't need to be so tough on crime all the time." Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far. Opponents have raised just $526,000, state election records show....
Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.
The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics. The foundation grants are not disclosed publicly in the same way campaign contributions are reported. Foundation nonprofit tax filings often do not become public until two years after money is spent. "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.
The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver.... Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....
Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment. An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....
In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47. Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board. The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment. "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."
Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....
Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
- New York Times editorial makes the case for California's Prop 47
Friday, October 31, 2014
New reduced federal drug sentencing guidelines about to become official
Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof. Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history. This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal:
[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive. Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow. Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.
[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety. Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution. I am also gratified that Congress permitted this important reform to go forward.
This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment. Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties. I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”
"Shrinking Prisons: Good Crime-Fighting and Good Government"
the title of this post is the headline of this thoughtful new piece from The Atlantic. Here are excerpts:
Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.
Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....
It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?
Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.
The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.
As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....
Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.
As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.
The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.
But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion. Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs. In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison. Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.
This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost. A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....
The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.
October 31, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Thursday, October 30, 2014
New York Times editorial makes the case for California's Prop 47
Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:
For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime. That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....
A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true. Multiple studies show that crime has gone down faster in states that have reduced their prison populations.
An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it. For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons. In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.
Dire warnings that crime would go up as a result were unfounded. Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average. That’s, in large part, because of a strong network of re-entry services.
The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week. Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.
That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually. To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.
Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up. But they’ve already been proved wrong on three-strikes reform. Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.
It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
"Physicians, Medical Ethics, and Execution by Lethal Injection"
The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:
In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment. This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions. Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.
- The Constitution Project issues big new report calling for broad reform of capital punishment administration
Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
As noted in this post last week, Pope Francis spoke out last week against life imprisonment and harsh sentencing systems focused more on punishment than social justice. This intriguing new American Spectator commentary by Mark Tooley takes issue with this papal advocacy, and concludes with complaints about governments failing to balance a "nurturing mommy" role with a "stern father role." Here are excerpts from an interestinf read:
Opposing life imprisonment raises questions. Should mass murderers be freed during their active lifetime? And what if they show no sign of remorse or rehabilitation? (My questions come respectfully from a Protestant who appreciates Catholic teaching.)
The Pope’s remarks acknowledged that official Catholic teaching still accepts the state’s rightful power to execute, quoting the Catechism that “the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” News reports say he quoted the Catechism that “cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” It is not clear but presumably he also included the Catechism phrase immediately before those words, which cites the “possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.”
What power does the state have for “rendering one who has committed an offense incapable of doing harm” except for the option of life imprisonment for recalcitrant murderers? It seems unlikely that many Americans, Catholic or otherwise, will advocate abolishing life imprisonment for heinous crimes. But recently Colorado’s pro-death penalty Republican gubernatorial candidate, a Catholic, recalled that Denver’s former bishop, Charles Chaput, had assured him that church doctrine is not against the death penalty....
The subtleties of Catholic teaching on capital punishment are difficult to translate into media sound bites or political explanations. Pope Francis’s comments against life imprisonment seem to go beyond the letter of the Catechism. Some activist American religionists, Catholic or otherwise, may latch on to them for a new campaign. But such an effort potentially would provoke a backlash and embolden defense of the death penalty.
Much of the American religious political witness today is totally uncomfortable with the state’s divine vocation for punitive action, much less lethal force. The New Testament offers little direct counsel on civil government’s responsibilities except, in St. Paul’s Romans 13, which warns that that “if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoers.” This language is pretty punitive.
But so much of modern American religious political witness prefers a highly non-punitive version of government. Their preferred vision likens the state to an indulgent, nurturing mommy, whose primary role is to feed, clothe, and ensure health care for all her children, while also welcoming all illegal immigrants, protecting the environment, lecturing against politically incorrect “hate speech,” and offering universal love, while simultaneously disarming in a way ironically that likely inhibits physical protection for her children.
Most of this mommy work the Scriptures and Christian tradition actually assign chiefly to the church, which is metaphorically a mother and the Bride of Christ. The Romans 13 focus for the state more resembles a stern father, who dispenses impartial but severe justice for the protection of his children. This sort of paternal state, unlike the sensitive mommy, reserves its interventions for dangerous misconduct. And it lets its charges pick themselves up from their stumbles, that they might grow strong, not remain immature through ceaseless coddling.
A true balance in society aligns nurturing mommy with stern father, both fulfilling their complementary roles in creation. The absence of one distorts human reality and creates corruption and tragedy. Pope Francis doubtless has earnest reasons for speaking against even life imprisonment. But his sentiments will likely only inspire the chronic mommy vision of the state already preferred by so many do-gooding religionists.
Religious leaders need to restore balance by citing Romans 13 and explaining the punitive, morally imperative stern father role of the state that is divinely ordained and essential for human justice.
Prior related post: