Thursday, June 25, 2015
Highlighting the need for much better modern prison metrics
Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:
The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.
Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.
Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.
Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.
Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.
A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....
The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?
Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.
The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.
Examining federal death row as Dzhokhar Tsarnaev becomes its newest (and youngest) member
The new NBC News piece, headlined "Tsarnaev Joins A Death Row With Many Members, And Few Executions," reviews some realities of federal death row in the wake of yesterday's formal capital sentencing of the Boston Marathon bomber. Here are excerpts:
Now that he's been formally sentenced to death, Boston Marathon bomber Dzhokhar Tsarnaev will soon become a resident of federal death row, joining 61 other killers who've been condemned to die by lethal injection at the U.S. Penitentiary in Terra Haute, Indiana.
There he will wait — likely for a very long time. Just how long depends on a range of factors, mainly the strength of his legal appeals. But it's safe to assume that, provided the appeals fail, it will be several years before he is put to death.
Despite the name, there isn't much death on death row. Since the federal government reinstated the death penalty in 1988, 75 inmates have ended up on death row, according to the Death Penalty Information Center. Ten have been removed, and only three have been executed.
The last man to die there was Louis Jones Jr., in 2003, eight years after he was sentenced for murdering a U.S. soldier. The other two, marijuana kingpin Juan Raul Garza and Oklahoma City bomber Timothy McVeigh, waited eight years and four years, respectively, for their executions.
That leaves 61 men and 1 woman still on federal death row, including two people whose original conviction or sentence has been reversed but their legal fate has not yet been finalized. Tsarnaev, 21, is the youngest.
He'll join a cast of violent men at Terra Haute — the one woman on death row, Lisa Montgomery, who killed a pregnant woman and cut her unborn baby out of her womb, is serving her remaining days in the Federal Medical Center Carswell in Fort Worth, Texas....
The longest current residents of death row are Corey Johnson, James Roane Jr. and Richard Tipton, fellow gang members who were sentenced to execution in 1993 for nine murders committed to protect their crack dealing operation. The newest — before Tsarnaev — is Thomas Sanders, who was sentenced to death in September for kidnapping and killing a 12-year-old girl.
It is often said that justice delayed is justice denied. As this article highlights, if you embrace that aphorism, federal death row is locale which has been experiencing a whole lot of justice denied in recent times.
Noticing Senator Cornyn's notable role in federal criminal justice reform efforts
Regular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair. But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip. Here are excerpts from an interesting piece about Texas Senator John Cornyn:
On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.
"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."
Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.
On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.
"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."
"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.
Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.
Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.
Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."
"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."
June 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Wednesday, June 24, 2015
"A Shrinking Texas Death Row"
The title of this post is the headline of this intriguing new item from the Texas Tribune. The piece has a series of great interactive charts providing the details on this basic death-penalty data story:
The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.
The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year. So far this year, nine inmates have been executed.
The main reason is a drop in new death sentences. In 1999, 48 people were sentenced to Texas death row, according to BJS data. In 2008, that number was nine — and has stayed in that range ever since. This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).
Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant. “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."
Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions. In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.
But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants. Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....
Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ. Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.
Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates. So far this year, Kase said three death penalty cases have gone to trial. All have ended with life-without-parole sentences.
Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission
I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website. Here is the text of the alert I received (along with relevant links):
Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels. This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment. Read the report.
For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”
The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle. Public comment is due on or before July 27, 2015. More information
There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,
June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”
The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:
After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.
But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.
The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.
The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.
“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”
It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.
“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”
The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.
For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...
Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.
“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”
The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.
“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.
The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.
Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”
Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.
Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”
But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.
While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...
Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.
Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”
June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Many bombing victims scheduled to speak at formal sentencing of Dzhokhar Tsarnaev
This AP article, headlined "More than 30 victims to speak at Boston bomber's sentencing," provides a preview of a high-profile formal sentencing scheduled to take place today in Massachusetts federal court. Here are excerpts:
More than 30 victims of the Boston Marathon bombing and their family members are expected to describe the attack's impact on their lives before a judge formally sentences bomber Dzhokhar Tsarnaev to death.
In May, a federal jury condemned Tsarnaev to die for bombing the 2013 marathon with his brother. Three people were killed and more than 260 were injured when the brothers detonated two pressure-cooker bombs near the finish line. Under the federal death penalty law, Judge George O'Toole Jr. is required to impose the jury's sentence. Tsarnaev's sentencing hearing is scheduled for Wednesday morning in U.S. District Court.
Among those expected to speak are Rebekah Gregory, a Texas woman who lost a leg in the bombings, and Liz Norden, the mother of two Massachusetts men who each lost a leg. Tsarnaev, 21, also will be given a chance to speak if he chooses.
"Punishment in Popular Culture"
The title of this post is the title of this intriguing new book of essays edited by Charles Ogletree and Austin Sarat. The book's table of contents reveals that the essays are authored by an array of interesting and distinct scholars who focus on an array of interesting and distinct topics ranging from early prison films to Abu Ghraib to "White Masculinity and Harsh Punishment in 1990s Popular Culture." The book's introduction authored by the editors provides a great preview of the book's themes and coverage, and here is an excerpt:
From the Gospel of Matthew to George Bernard Shaw and former Supreme Court Justice William Brennan, many have remarked that how a society punishes reveals its true character. Punishment tells us who we are. The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness, and its particular ways of responding to evil....
Punishment in Popular Culture examines the cultural images that undergird and critique America’s distinctive approach to punishment. It analyzes punishment as a set of images, as a marvelous spectacle of condemnation. It recognizes that the semiotics of punishment is all around us, not just in the architecture of the prison or the speech made by a judge as she sends someone to a penal colony, but in both “high” and “popular” culture iconography — in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word “our” is inaccurate here. Émile Durkheim and George Herbert Mead, among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through dis-identification as much as imagined connection....
America, as is widely known, has been on a several decades’ old incarceration boom. As noted above, we continue to lock up more people for longer periods of time than most other nations, as well as to use the death penalty and to racialize punishment in ways that are quite remarkable. How are these facts of American penal life reflected in, encouraged through, or critiqued by the portraits of punishment that Americans regularly encounter on television and in film? What are the conventions of genre that help to familiarize those portraits and connect them to broader political and cultural themes? In its cultural lives, can punishment claim a secure basis in morality? Or do television and film help to undermine its moral claims? How are developments in the broader political economy reflected in the ways punishment appears in mass culture? And finally, how are images of punishment received by their audiences?
While the work collected in our book does not purport to provide a comprehensive overview, these are the questions that Punishment in Popular Culture addresses. Our book thematizes issues of genre, morality, political economy, and reception in its analyses and brings together distinguished scholars of punishment and experts in media studies in an unusual juxtaposition of disciplines and perspectives.
Tuesday, June 23, 2015
DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order
As reported in this prior post, last month US District Judge John Gleeson examined the collateral workplace consequences of an old federal fraud conviction in the course of ordering the (legally questionable?) remedy of expungement in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here). Now, as reported in this Wall Street Journal article, headlined "Justice Department Sets Its Sights on Rare Expungement Order," it appears that the Second Circuit will have a chance to consider this matter. Here are the basics:
The Justice Department spearheads the federal government’s efforts to help people convicted of crimes return to society after paying their dues, but a case in Brooklyn is putting its views to the test. The U.S. Attorney’s Office for the Eastern District of New York signaled Friday that it will appeal a rare order by a federal judge expunging the fraud conviction of a health-care aide and mother of four who said her efforts to hold down a job have been sabotaged by her criminal record.
In his May order, U.S. District Judge John Gleeson nodded to “a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive.” He cited a 2011 letter by then Attorney General Eric Holder pressing state attorneys general to reassess state laws that limit the job prospects of ex-offenders. That same year, Mr. Holder established a council of 20 government agencies whose goal is “to remove federal barriers to successful reentry, so that motivated individuals — who have served their time and paid their debts — are able to compete for a job, attain stable housing, support their children and their families, and contribute to their communities.”
“If the government is trying to look out for people in these situations, why take this case of all cases?” said Brooklyn lawyer Bernard H. Udell, who is representing the woman whose conviction Judge Gleeson expunged. A spokeswoman at the Justice Department’s headquarters in Washington, D.C., declined to comment. A spokeswoman for the U.S. attorney’s office in Brooklyn had no immediate comment.
In 2002, Judge Gleeson sentenced the woman, who is identified in court documents by the pseudonym Jane Doe, to five years of probation for feigning injury in a staged car crash and falsely claiming to have received medical services as part of a scheme to collect insurance money. She landed several jobs as a health-care aide since her conviction but lost them after her record came to light in background checks, according to her petition. Judge Gleeson cited several factors in support of his decision to expunge her record, including the 17 years that have elapsed since she committed a crime, the trouble she has had keeping jobs, her age (mid-50s) and the nonviolent nature of her crime.
The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past. The brief said expungement should be used only in extreme circumstances, citing cases involving illegal arrests and police misconduct.
Prior related post:
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Is the initiative process a wise way to move forward with criminal justice reform?
Those who know me well know that I have become, generally speaking, big fan of direct democracy and not really that much of a fan of representative democracy. This affinity is driven in part by the efficacy of direct democracy in driving forward the national marijuana reform movement, but it is driven more fundamentally by the reality that direct democracy gets the electorate talking about (and the media reporting on) substantive policies and public priorities. In contrast, as we see now most every election cycle, representative democracy too often gets the electorate talking about (and the media reporting on) personal scandals and public personas.
Because I am a big fan of direct democracy, I was especially excited to see this recent Washington Post article headlined "ACLU growing political program, plans ballot initiatives." Here are excerpts:
The American Civil Liberties Union, looking to increase its effectiveness, is launching a major political advocacy program. The group has raised or received commitments for $80 million to back up a 501(c)(4) and announced on Friday that veteran Democratic operative Karin Johanson has been hired as its first ever national political director.
Johanson, who was executive director of the Democratic Congressional Campaign Committee when the party took control of the House in 2006, will run the ACLU’s Washington, D.C. office and spearhead several ballot initiative campaigns in 2016, focused on criminal justice reform and banning discrimination against the LGBT community....
“It has become increasingly clear that we can’t rely upon litigation or old-style lobbying,” Romero said in an interview. “The gridlock in Washington is suffocating … Sitting down with legislators, walking through the pros and cons of a particular bill and trying to cajole them to do the right thing increasingly draws limited dividends. The place to light a fire under them is in their home district.”
The ACLU will soon pick three states with high incarceration rates and then sponsor ballot initiatives next year aiming to force sentencing reform. Five states are being considered, but they’ll pick just three so that the group can go all-in and score some tangible victories.
Criminal justice is a hot issue right now, with backing from liberals, libertarians like the billionaire Koch brothers and fiscal conservatives. “This is not a reform effort focused on the Northeast liberal corridor,” said Romero. “We’re going to the tough states, the Deep South.”
For various reasons, I am pleased to learn that the ACLU is looking to bring the arguments for criminal justice reform straight to the people through the initiative process. But I also know there are many people interested in criminal justice reform who have different views on the best means to reform ends, and I would be eager to hear in the comments any reasons why I should not be too excited about seeking criminal justice reform through direct democracy.
"Policing, Mass Imprisonment, and the Failure of American Lawyers"
In prior comments, someone spotlighted this notable recent commentary by Alec Karakatsanis appearing in the Harvard Law Review Forum under the title that serves as the title of this posts. Here are excerpts from the introduction and the final paragraph of this provocative piece:
The contemporary system of American policing and incarceration puts human beings in cages at rates unprecedented in American history and unparalleled in the modern world. Its current rate of incarceration is about five to ten times that of other comparably wealthy countries and five times its own steady historical average prior to 1980. It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal. It is also a failure of the legal profession....
The failure of lawyers is a tragedy in two parts. First, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of modern policing and mass incarceration. Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with our rights and values....
Legal academics, judges, and lawyers of conscience must take up this two-pronged challenge: we must bring intellectual rigor to legal discourse and doctrine on these issues, and we must use the energy that animates our bodies to ensure that the legal system looks in practice as it appears in our scrolls and on our marble monuments.
Monday, June 22, 2015
Robina Institute now has great new "Sentencing Guidelines Resource Center"
Via e-mail, I just learned about a great new resource, The Sentencing Guidelines Resource Center, that has been created on-line by the Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail description of this resource center (which I already have added to my Resources sidebar):
The Robina Institute is pleased to present The Sentencing Guidelines Resource Center. The Sentencing Guidelines Resource Center is a new website that serves as a central source of information related to American sentencing guidelines systems. The Sentencing Guidelines Resource Center includes:
By bringing together, in one place, materials that span all of the current sentencing guidelines systems in the U.S., the Robina Institute’s Sentencing Guidelines Resource Center is able to facilitate the exchange and sharing of information, expertise, and experience; educate on issues related to sentencing policy, guidelines, and commissions; promote multi- jurisdictional comparative research and policy analysis; and promote the adoption and retention of best practices in sentencing guidelines systems.
- Detailed profiles of 6 sentencing guidelines jurisdictions: Alabama; Kansas; Minnesota; Oregon; Pennsylvania; and Utah. More jurisdictions will be added over the next several months.
- Current versions of the guidelines in each jurisdiction.
- A searchable repository of materials produced by sentencing guidelines commissions (training manuals, worksheets, reports, meeting summaries).
- Summaries of important interpretive case law.
- A comparison tool so visitors can examine sentencing guidelines systems, side by side.
- In-depth articles covering topics about guidelines and sentencing commissions.
How much will get spent on (merely symbolic?) death penalty referendum efforts in Nebraska?
The question in the title of this post is prompted by this notable local article from Nebraska headlined "Group fighting death penalty retention gets $400,000 grant." Here are the interesting "follow-the-money" details:
Death penalty opponents got a cash injection Friday, and death penalty advocates accused them of using it to suppress voter rights.
ACLU of Nebraska will give the $400,000 grant from Massachusetts-based Proteus Action League to the Nebraskans for Public Safety coalition formed to fight the effort to retain capital punishment in the state. Proteus Action has given $21 million nationwide in the past five years toward repeal of the death penalty. "This support demonstrates the world is watching what is happening here this summer," Danielle Conrad, executive director of the ACLU of Nebraska. "This support will be like rocket fuel to the campaign."
ACLU of Nebraska is part of the coalition, as are Nebraskans for Alternatives to the Death Penalty, Nebraska Innocence Project, faith leaders, conservative leaders and the Nebraska Criminal Defense Attorneys Association.
Friday afternoon, Nebraskans for the Death Penalty called ACLU participation in the coalition shameful. “Nebraskans have a constitutional right to vote on whether they wish to restore the death penalty," founding member Bob Evnen said in a statement. "The ACLU has announced that it will spend hundreds of thousands of dollars to try to sabotage the right to vote on this very important issue. Few rights in a democracy are more fundamental than the right to vote. The ACLU’s effort to thwart that right is shameful.”
Replied Conrad: "I absolutely disagree with that. I don't understand that attack." Conrad said her group's work is the opposite of voter suppression. Declining to sign the pro-death-penalty petition is in fact exercising one's right to vote, she said.
Last month, Nebraska became the first red state since 1973 to abolish capital punishment. The Legislature voted for repeal May 20 and a week later overrode a veto by Gov. Pete Ricketts. The bill (LB268) goes into effect Aug. 31.
Almost immediately, Omaha Sen. Beau McCoy said he'd look at putting the issue to a vote, and Nebraskans for the Death Penalty opened offices in Omaha and Lincoln the first week of June.... Death penalty supporters have 72 more days to gather 115,000 verified signatures -- 10 percent of registered voters -- to suspend the law and put it to a vote in November 2016. They need about half that number to put the issue to a vote after the law takes effect.
"I think both are hard," Conrad said of the two thresholds. "I can tell you from working both sides of campaigns in direct democracy, it's not easy to be out in the heat and the rain in a multitude of counties. ... I don't think that they or we can take anything for granted."
Conrad said Nebraskans for Public Safety will use the $400,000 to make sure the petition drive is conducted properly and to work statewide to educate people on the issue. And if the move to stop the law from taking effect is successful, she said, her group will have a good start at working to defeat a vote next year.
Peterson said he expects Nebraskans for the Death Penalty will raise and spend about $900,000 and will file required paperwork June 30 saying how much it has raised so far.
This story suggests that at least a few million dollars are likely to be spent on just the initiative run-up effort in Nebraska, and I have to assume many millions more will get spent on the campaign if (when?) the issue gets on the ballot. And yet, even if Nebraska voters were to bring the death penalty back after the legislature's recent repeal, it seems highly unlikely the vote will significantly increase the chances any formerly condemned murderer gets executed or that any future murderers get sent to death row.
Even if the death penalty is brought back by voter initiative, defense attorneys are sure to continue pursuing extensive (and expensive) litigation in state and federal courts asserting that the eleven folks already on Nebraska's death row cannot now be executed. And even if the death penalty is brought back by voter initiative, prosecutors are sure to continue to struggle to convince Nebraska juries to condemn murderers to death in future cases.
Notably, given that Nebraska has not executed anyone in nearly two decades, and has averaged less than a single death sentence per year over its modern history, symbolism plainly matters a lot more than substantive outcomes as money is raised to fight over the death penalty's future in the Cornhusker State. Whatever position one takes on the death penalty, it is hard not to wonder if the monies to be spent on the developing symbolic capital policy fight could go to much uses for violent crime victims and the state's judicial system.
Interesting statement from Justice Sotomayor on Fifth Circuit approach to plain-error sentencing review
As noted in this post today (and this prior post from last week) about recent SCOTUS activity, sentencing fans like me eagerly awaiting big Supreme Court rulings in the Johnson Armed Career Criminal Act case and the Glossip lethal execution drug case have to keep waiting at least a few more days for a decision. But, truly hard-core sentencing fans got a smidgen of unexpected love from Justice Sonia Sotomayor through this brief statement in Carlton v. US concerning how the Fifth Circuit applies plain-error review. Here are excerpts which provide the context:
The District Court enhanced petitioner Roy Carlton’s sentence based on a factual inaccuracy introduced into the sentencing record by the Government. The United States Court of Appeals for the Fifth Circuit refused to review Carlton’s appellate challenge to the enhancement, relying on Circuit precedent holding that factual errors are never cognizable on plain-error review. For the reasons that follow, I believe the Fifth Circuit’s precedent is misguided....
The doctrine of plain error follows from the recognition that a “rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted). And in all the years since the doctrine arose, we have never suggested that plain-error review should apply differently depending on whether a mistake is characterized as one of fact or one of law. To the contrary, “[w]e have emphasized that a per se approach to plain-error review is flawed.” Puckett v. United States, 556 U.S. 129, 142 (2009) (internal quotation marks omitted). The Fifth Circuit’s wooden rule that factual mistakes cannot constitute plain error runs counter to these teachings....
Given its inconsistency with the governing text and longstanding precedent, it is little wonder that no other court of appeals has adopted the per se rule outlined by the Fifth Circuit in Lopez.... All agree the District Court improperly relied on testimony Anderson never gave. But in the Fifth Circuit — and only the Fifth Circuit — that mistake cannot be reviewed and possibly corrected. As a result, Carlton may spend several additional months in jail simply because he was sentenced in Alexandria, Louisiana, instead of Alexandria, Virginia.
For all these reasons, I conclude that Lopez’s categorical rule is unjustified. Nevertheless, I reluctantly agree with the Court’s decision to deny certiorari in this case. The Solicitor General informs us that the Fifth Circuit is at times inconsistent in its adherence to Lopez. When that sort of internal division exists, the ordinary course of action is to allow the court of appeals the first opportunity to resolve the disagreement. I hope the Fifth Circuit will use that opportunity to rethink its approach to plain-error review.
Notable new study on 56 failed capital cases in North Carolina over past 25 years
As detailed in this local article, headlined "Report: NC prosecutors sometimes push for death penalty in flimsy cases," a notable new report about capital prosecutions in the Tar Heel State was released this morning. Here are the basics:
Fending off a capital murder charge can cost falsely accused defendants money, jobs, homes and their health, according to a report released by the Durham-based Center for Death Penalty Litigation.
The center studied 56 cases from 1989 to 2015 in which the death penalty was threatened as a potential punishment, but the charges were either dropped or the person charged was acquitted at trial. The results suggest that prosecutors sometimes use the threat of the state's most severe penalty when their evidence is the weakest, said Gerda Stein, a spokeswoman for the center. "They believe they have the right person," Stein said. "The problem is, they don't have enough evidence."
The center's report suggests the death penalty is used to bully defendants into accepting plea deals or to extract confessions from witnesses.
North Carolina has not executed a criminal defendant since 2006 as lawsuits over the method of execution and the now-repealed Racial Justice Act have kept the state from moving forward. During that time, there have been high-profile exonerations of death row inmates, including the recently pardoned Leon Brown and his half-brother, Henry McCollum.
Less well known are cases like that of Leslie Lincoln, who was accused of her mother's 2002 murder. She was implicated in part by faulty DNA evidence. Ultimately, she was found not guilty at trial, but she struggled with the aftermath of spending three years in jail and another two years on house arrest. She lost her job, savings and home and suffered from anxiety and depression after the acquittal, according to the report....
The center distributed embargoed copies of its report last week. One of those who reviewed a copy was former Supreme Court Justice Bob Orr, who says he does not oppose the death penalty but is troubled by its uneven application. "I think one of the points the report stresses is the leverage that comes with trying somebody and potentially pursuing the death penalty," Orr said. "It is sometimes the weakest cases, the ones where you don't have the strong evidence, that there seems to be an inclination to try to move forward with the death penalty."
The report doesn't suggest specific fixes to the issue. The center is one of a number of groups that has argued for the elimination of the death penalty altogether.
Orr said that, if the state is going to continue having capital punishment, it needs to do more to ensure a fair system. Both prosecutors and the defense attorneys for indigent defendants need better funding, he said, and he suggested the state ought to somehow centralize the decision on whether the death penalty is pursued, taking it out of the hands of prosecutors who might use the threat of capital punishment as tactical leverage. "That would make for a fairer, more even-handed, dispassionate decision-making process," he said.
The title of this new report is "On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina," and it can be accessed via this link. That link also provides this summary of report's main findings about the 56 North Carolina cases it studied:
• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. Had the defendants been charged non-capitally, all that money could have been saved. (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)
• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
• Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
SCOTUS rules 5-4 against government in two criminal procedure cases
The Supreme Court, back in action this morning, issued two notable split decisions in favor of individuals asserting rights against local or state criminal justice powers. Here is an abridged (slightly modified) account of the SCOTUSblog early coverage of these rulings (with links):
This case arises out of an incident in a Wisconsin jail. Kingsley was waiting for trial on a drug charge when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later used a taser on him. Kingsley then filed a lawsuit, alleging that jail officials had used excessive force. The question before the Court was what standard of review should apply to an excessive force claim by a pretrial detainee.
The Court ruled in favor of Kingsley, holding that courts should apply an objective test – the same Fourth Amendment excessive force test that applies to people who have not been arrested. Vote is 5-4. Under Section 1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim.
Scalia dissents, joined by Chief and Thomas, and Alito dissents as well.
The question in this case was whether a Los Angeles ordinance that required hotel owners to keep registries of guests, and allowed officers to search them without any suspicion is unconstitutional under the Fourth Amendment. The Court the ordinance facially unconstitutional. Statute is facially unconstitutional because it fails to provide motel owners with an opportunity for pre-compliance review.
Sotomayor is writing. Decision of the Ninth Circuit is affirmed. This is a strong decision for Fourth Amendment lovers.
"Justice Kennedy practically invites a challenge to solitary confinement"
The title of this post is the headline of this Los Angeles Times article which effectively reviews the remarkable (off-point) concurrence penned by Justice Kennedy in last week's SCOTUS ruling in a Davis v. Ayala. Here are excerpts:
Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a case, wrote that it may be time for judges to limit the use of long-term solitary confinement in prisons. His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.
“Years on end of near-total isolation exacts a terrible price,” he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”
Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty. “In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
Amy Fettig, an attorney for the ACLU’s National Prison Project, said Kennedy's comments came as a welcome surprise. “It’s a remarkable statement. The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement,” she said.
States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said. “They are automatically placed there. It has nothing to do with their being violent or their level of dangerousness,” she said. This month, a federal judge in Virginia is weighing a “cruel and unusual punishment” claim brought by inmates on death row there, she noted.
Kennedy usually joins with the court’s conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. Four years ago, he spoke for a 5-4 majority that condemned overcrowding in California’s prisons and said it resulted in unconstitutionally cruel conditions....
Kennedy's comments drew a short, but sharp retort from Justice Clarence Thomas. “The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest. And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth,” Thomas wrote.
Sunday, June 21, 2015
Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"
The US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.) Here is how the USSC itself briefly describes its new (data-heavy) document:
As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.
This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging. In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:
Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...
During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....
In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....
Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range.... Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.
Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....
[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.
In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.
June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"
The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:
There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.
By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.
Saturday, June 20, 2015
The Economist explains "how to make America’s penal system less punitive and more effective"
This notable new piece from the print edition of The Economist, headlined "Jailhouse nation: How to make America’s penal system less punitive and more effective," provides advice from across the pond about how the US ought to reform its criminal justice system to address mass incarceration. Here are excerpts:
More and more Americans accept that the harm caused by mass imprisonment now exceeds its benefits. Hillary Clinton, whose husband’s 1994 crime bill filled many a cell, has now changed her mind. On the right, fiscal conservatives decry the burden on taxpayers, while Christians talk of mercy. Rick Perry, a former governor of Texas and a Republican presidential candidate, boasts of his record of closing three prisons in his state. Nationwide, the incarcerated population appears to have plateaued; it should be sharply reduced.
A good start would be to end the war on drugs, which would do less harm if they were taxed, regulated and sold in shops, not alleys, as marijuana is in Colorado and Washington state. In fact, the drug war is already ebbing: in 1997 drug offenders were 27% of all prisoners; now they are around 20%. That could be cut to zero if drugs were legalised.
The next step would be to amend or repeal rules that prevent judges from judging each case on its merits, such as state and federal “mandatory minimum” sentences and “three strikes” rules that compel courts to lock up even relatively minor repeat offenders for most of their lives. New York has dramatically reduced its state-prison population this way. Prosecutors there have in effect been told to limit the number of people they imprison, giving them an incentive to lock up only the most dangerous. Prosecutors have long had huge discretion in which charges they bring; those in New York now use police intelligence to help them decide. If the man in the dock seems relatively harmless, they go easy on him; if they know him to be a career criminal who has remained free because he intimidates witnesses, they throw the book at him. Crime has fallen in New York. There has been no backlash among voters.
Reducing the prison population to European levels is probably impossible, for America is still a much more violent place, even if most districts are reasonably safe. There are roughly 165,000 murderers in American state prisons and 160,000 rapists. If America were to release every single prisoner who has not been convicted of killing or raping someone, its incarceration rate would still be higher than Germany’s.
But still, America does not need to lock up every violent criminal for as long as it does — which is longer than any other rich country. Some 49,000 Americans are serving life without the possibility of ever being released. (In England and Wales the number is just 55.) Such harshness is unnecessary. A 50-year sentence does not deter five times as much as a ten-year sentence (though it does cost over five times as much). Money wasted on long sentences cannot be spent on catching criminals in the first place, which is a more effective deterrent.
Reform is hard. Prosecutors and judges are often elected in America; many woo votes by promising to be tougher than their predecessors. Politicians who are seen to be soft on crime run a risk....
Nonetheless, the big fall in crime in the past two decades means that Americans are now less afraid than they were, and more open to reform. Californians voted last year in a referendum to downgrade several non-violent felonies to misdemeanours. Other states are experimenting with better education in prisons (so that ex-convicts have a better chance of finding work), and drug treatment or GPS-enabled ankle bracelets as alternatives to incarceration. Some are also trying to improve prison conditions, not least by curbing assaults and rapes behind bars. The aim of penal policy should be harm reduction, not revenge. Tighter gun laws might help, because guns can turn drunken quarrels into murders; alas, that is politically improbable for now. There is no single fix for America’s prisons, but there are 2.3m reasons to try.
Despite statutory repeal, capital defenders say they need to keep representing Nebraska condemned
Some of the challenging issues facing Nebraska lawyers in the aftermath of the state's legislative repeal of the death penalty are on display in this notable local article headlined "John Lotter's lawyers argue they must stay on case because death penalty issue isn't settled." Here are the details:
Legal arguments over Nebraska’s death penalty repeal have quickly emerged in a federal court case involving one of the state’s death row inmates. Two Kansas City attorneys argued this week that John Lotter’s death sentence was negated by the Nebraska Legislature’s May 27 repeal of capital punishment.
But lawyers Rebecca Woodman and Carol Camp said their client remains under threat of execution while a referendum petition drive attempts to overturn the repeal law and Gov. Pete Ricketts pushes for the lethal injections of Lotter and the nine other men on death row. For that reason, the attorneys asked to remain assigned to Lotter’s case.
“Although Mr. Lotter asserts that the U.S. and Nebraska Constitutions would bar his execution even if the governor and his group were able to repeal the repeal, it is clear the governor will keep attempting to execute him until the courts definitively say he may not. That moment has not yet arrived,” the attorneys stated in a court brief filed in U.S. District Court in Lincoln.
In response, Assistant Nebraska Attorney General James Smith argued that only the Nebraska Board of Pardons has the authority to commute a death sentence under the state’s Constitution. Smith contended lawmakers passed flawed legislation by including intent language that says the repeal should apply to the existing death row inmates. “If the act was an unconstitutional power grab by the Nebraska Legislature, Lotter’s final death sentence remains in effect,” Smith said in his brief....
Lotter, 44, has spent 19 years on death row for a New Year’s Eve 1993 triple homicide near Humboldt. One of the victims was targeted for being transgender, which inspired the film “Boys Don’t Cry.” Lotter lost his previous appeals before state and federal courts. That makes him and Carey Dean Moore — convicted of killing two Omaha cab drivers in 1979 — the top candidates for execution depending on what happens with the repeal law.
As of now, however, Nebraska lacks the means to carry out an execution. Two of the three drugs required in the state’s lethal injection protocol have expired, and federal officials have said they will block the state’s attempt to import at least one of the drugs.
Woodman and Camp, who work with the Death Penalty Litigation Clinic, pointed out that no other state has executed an inmate after repealing the death penalty. To do so “would represent the sort of random, arbitrary, purposeless extinction of human life that the Eighth Amendment forbids,” they said in their brief. The two have asked U.S. District Senior Judge Richard Kopf to allow them to continue to represent Lotter while the status of the death penalty remains uncertain. They indicated Lotter has been pursuing constitutional claims never before litigated that would invalidate his death sentence.
"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights"
The title of this post is the title of this interesting and important new article by Sarah French Russell recently posted to SSRN. Here is the abstract:
Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts.
Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination? Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence. But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings.
In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.
Friday, June 19, 2015
Split Eleventh Circuit panel discusses reasonableness review at great length
More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness. That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:
This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I). That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.
On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term. That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable.
Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable. In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence. The dissent starts this way:
For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range. The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary to comply with the purposes set forth” in 18 U.S.C. § 3553. See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.
Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about. The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:
South Carolina’s governor on Friday called for the 21 yearold man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.
“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.” The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”
“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”
Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....
On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”
In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....
In downtown Charleston, there was already talk of the longterm anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35-year-old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”
Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.
For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators. For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.
"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"
The title of this post is the headline of this intriguing new article from an independent paper in Vermont. Here is how the lengthy article gets started:
Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."
Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.
"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."
The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."
Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.
Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.
Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.
Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."
Thursday, June 18, 2015
In aftermath of prison escape, NY legislator suggests microchip tracking implants for violent offenders
As reported in this local piece, headlined "N.Y. State Senator Proposes Using GPS Implants To Track Violent Convicts," a high-profile prison escape has now prompted a high-tech proposed solution to prison escapes. Here are the details:
Bloodhounds and expensive manhunts are so yesterday when it comes to hunting escaped prisoners. That’s the opinion of one lawmaker, who says the state should explore implanting tiny GPS devices under convicts’ skin. Others say microchipping criminals could have multiple uses, CBS2’s Marcia Kramer reported Tuesday.
“If you’ve got convicted murderers, the type of people these two men are, that it would make some good sense at that level that we should have something that we could track them,” said State Sen. Kathy Marchione, R-Saratoga. With 800 law enforcement officials still unable to pick up the trail of escaped murderers Richard Matt and David Sweat, the suggestion from Marchione to implant microchips in people convicted of serious crimes is picking up steam.
“I’m in favor of it, but I do think there have to parameters with respect to the crime itself. I wouldn’t do it for arson, which falls under the violent, but I would do it for aggravated rape and murder,” said Paul Viollis, a security expert and former investigator in the Manhattan District Attorney’s Office. “I see the public safety value in it, not just from an escape standpoint but also from an inmate-control perspective within the institution,” said Jon Shane, a professor at John Jay College.
The New York Civil Liberties Union said microchipping inmates is unconstitutional. “It sounds like a knee-jerk reaction. They should plug the security inside prisons,” said NYCLU Executive Director Donna Lieberman. “As a constitutional matter, it won’t survive a challenge because it’s an invasion of body autonomy.”
Shane, a former cop, said it might pass constitutional muster if the chip was removed if and when a prisoner is released. “Removing it when they are paroled, those sorts of things, transitioning from a microchip to an ankle monitor, are all going to have to be explored,” Shane said.
There’s also the question of whether the microchip could be cut out the minute the inmate escaped. Experts say the chips would be embedded in the neck, underneath six or seven layers of skin. So simply cutting it out without medical assistance would pose a significant health risk, Kramer reported.
I tend to favor at least the considerationof new technologies and technocorrections, so I personally would endorse this kind of innovation. I would especially endorse this kind of technocorrections if it might provide a ready means to give better-behaving prisoners more freedom and liberty while they are imprisoned without crating any risks to general public safety.
Criminal law geek overload as SCOTUS clears most (but not most consequential) of its criminal docket
As the posts preceding this one reveals, the US Supreme Court this morning largely ruined my plans to spend much of the next 80 hours obssessing over one of my favorite summer sporting events. They did so by handing down four "meaty" criminal law opinions, all of which appears to include an array of doctrinal and dicta nuances that likley will prove to be blogworthy in the days ahead. I will collect here all the prior posts (which have links to the opinions) in order to help those keeping score to see that criminal defendants prevailed in two cases and lost in two cases:
From a way-too-quick assessment of these rulings, I sense that Clark is the biggest deal both as a matter of constitutional jurisprudence and as a matter of day-to-day criminal trial practice. But, because the Confrontation Clause has generally been deemed inapplicable in sentencing proceedings, hard-core sentencing fans might find a lot more of interest in the other rulings.
Also noteworthy, as the title of this post highlights, still outstanding from the Justices are the two cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act. I have long assumed and expect that we would not get a ruling in Glossip until the very end of the month, and I now am thinking there is a good chance we might get Johnson as early as next week.
SCOTUS unanimously rules for federal defendant on mens rea issue in McFadden CSA case
The US Supreme Court has just handed down its opinion in the Federal criminal case of McFadden v. US, No. 14-348 (S. Ct. June 18, 2015) (available here). Justice Thomas wrote the opinion for the Court, which garnered no dissents but generated a short concurrence by the Chief Justice. The Court's opinion begins this way:
The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U.S.C. § 802(32)(A), and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law, §813. The Controlled Substances Act (CSA) in turn makes it unlawful knowingly to manufacture, distribute, or possess with intent to distribute controlled substances. § 841(a)(1). The question presented in this case concerns the knowledge necessary for conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue.
We hold that § 841(a)(1) requires the Government to establish that the defendant knew he was dealing with “a controlled substance.” When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity. The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “‘controlled substance analogue.’” § 802(32)(A). Because the U. S. Court of Appeals for the Fourth Circuit approved a jury instruction that did not accurately convey this knowledge requirement, we vacate its judgment and remand for that court to determine whether the error was harmless.
SCOTUS rules 5-4 for state capital defendant in Brumfield v. Cain, and 5-4 against state capital defendant in Davis v. Ayala
The US Supreme Court has just handed down its opinion in the state capital case of Brumfield v. Cain, No. 13-1433 (S. Ct. June 18, 2015) (available here). Justice Sotomayor wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
In Atkins v. Virginia, 536 U.S. 304 (2002), this Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment. After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court.
Justice Thomas authored a lengthy dissent which ends with a picture and starts this way:
Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision that fails to respect the Louisiana state courts and our precedents. I respectfully dissent.
Just a few minutes later, the US Supreme Court handed down its opinion in the state capital case of Davis v. Ayala, No. 13-1428 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:
A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful.
The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).
Justices Kennedy and Thomas wrote interesting off-topic concurrences, which I will discuss in a separate post. More on point is the chief dissent in Ayala authored by Justice Sotomayor, which starts this way:
At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome.
SCOTUS narrows reach of Confrontation Clause via Ohio v. Clark
The US Supreme Court has just handed down its opinion in the state criminal case of Ohio v. Clark, No. 13-1352 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which garnered no dissents but did prompt separate concurrences by Justices Scalia (joined by Justice Ginsburg) and Justice Thomas. The Court's opinion begins this way:
Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be crossexamined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial.
Notably, Justice Scalia's concurrence reads a lot more like a dissent, as evidenced by this passage early in his opinion:
I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U.S. 36 (2004). For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’” Ohio v. Roberts, 448 U.S. 56, 66 (1980). Prosecutors, past and present, love that flabby test. Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial. 541 U.S., at 51. We defined testimony as a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confrontation Clause, a fact “potentially relevant to later criminal prosecution,” Davis v. Washington, 547 U.S. 813, 822 (2006).
Terrific Marshall Project coverage of "How Germany Does Prison"
Among the great stuff at The Marshall Project these days is a series of original pieces authored by Maurice Chammah as he and a delegation of American officials tour the German prison system. So far there have been three daily reports, and here are the full headlines and links:
Here is an excerpt from the second of these pieces, which highlights themes of the series:
[I]t was clear that this trip would be as much about the United States as about Europe. Germany’s system of sentencing (15 years is the longest most people go to prison here unless they are demonstrably dangerous) and incarceration (open, sunny prisons, full of fresh air, where prisoners wear their own clothes) serves as a reference point for reflecting on the punitive mentality that has come to define the U.S. justice system....
On Monday, as we visited Heidering Prison.... Bernie Warner, the corrections secretary of Washington, noticed the faint smell of smoke — all the prisoners can smoke here, unlike their counterparts in the U.S. Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. They have privacy—correctional officers knock before entering. Prisoners wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid more for their work, and have opportunities to visit family, learn skills, and gain education. (Inmates are required to save money to ensure that they are not penniless upon release.)
There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals to be part of a "therapeutic culture" between staff and offenders — and they consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other potentially dangerous implements. And the maximum time inmates spend in any kind of punitive solitary is eight hours.
"Find a [security] camera,” Gregg Marcantel, the corrections secretary of New Mexico, said as he walked through the prison’s main corridor. “There aren’t any!” When he heard that prisons in Berlin have 33 physicians to care for 4,200 inmates, Marcantel’s response was a hearty, “Good God!” That’s a ratio of about 1 doctor for 127 prisoners. In Virginia's state system, according to a recent count, there was one doctor for every 750 inmates. We walked through pristine white cells that looked more like dorm rooms at a liberal arts college than the steel and concrete boxes most U.S. prisoners call home. The toilets and sinks were white and ceramic, nothing like the stainless steel bowls bolted to the wall in many U.S. prisons (Heidering Prison opened in 2013, but such toilets have been installed in older prisons as well). Most prisoners have knives and forks in their cells. Though the prisoners cannot access the Internet, they have telephones in their rooms, and they can call anyone — even the media. “We have nothing to hide,” Detlef Wolf, vice governor for Heidering Prison, said with evident pride....
Administrators here freely work terms like “human rights” and “dignity” into speeches about their prison system, and Germans appear to view people who commit crimes as medical patients (the word “prognosis” came up a lot to describe the status of an inmate). There is little stigma after prisoners finish their sentences — employers in Germany generally do not ask job applicants if they have a criminal record, according to Michael Tonry, a University of Minnesota professor on the trip who’s studied corrections systems in the U.S. and Europe. In some cases, the cultural norms were so foreign that it was pretty much impossible to imagine them taking root in the U.S.
Once the shock wore off, the questions came, and they reflected the political and professional concerns of those doing the asking. Many of the leaders here who have been elected or appointed — including Marcantel of New Mexico and Jeff Rosen, the elected district attorney in Santa Clara, California — wanted to know about victims. Do their desires for retribution play any role in sentencing here? (In the U.S., they are often allowed to read “victim impact statements” before juries assess punishment, and prosecutors often consult with them). Do sensational murders lead to the passage of more punitive laws?
The Germans had trouble making sense of these questions. There were a lot of blank stares. In Germany, prosecutors and judges are not elected. As career civil servants, they are insulated from public opinion. Their work is more “technical,” said Gero Meinen, who directs the prison system in Berlin. The role is to protect the rational system of correction — which aims to restrict freedom the least amount necessary — from the retributive impulses that individual victims and society in general might feel. Now it was the Americans’ turn for blank stares.
Besides the surprise, other emotions lingered just below the surface. A few travelers were skeptical, and will be looking for ways in which things might be worse than they appear throughout the rest of the week.
New ACLU lawsuit assails public defender system in Idaho
This new AP piece, headlined "ACLU Sues Idaho in Push to Improve Public Defender System," reports on a notable new civil rights lawsuit in the Gem State. Here are the details:
A national civil liberties group has brought its fight to overhaul the criminal defense system for low-income defendants to Idaho with a lawsuit that says the state hasn't done enough to make sure poor people are being fairly represented.
The American Civil Liberties Union contends state officials have known for several years that overwhelming case loads, underfunded budgets and a patchwork system that varies county by county prevent defendants from receiving adequate legal representation guaranteed by the U.S. Constitution.
Idaho officials, including the governor and attorney general, declined to comment Wednesday on a case that continues a national push for the ACLU....
The organization has brought similar lawsuits in several states recently, reaching settlements in New York and Washington after the U.S. Justice Department intervened on the ACLU's behalf and state officials agreed to sweeping reforms.
The Idaho case names four plaintiffs who say they've spent months in jail without speaking to their court-appointed attorneys or that their cases weren't properly reviewed, and the organization is seeking class-action status so the case will apply to all low-income defendants in the state. The filing asks a state judge to order Idaho officials to implement a better system....
Lawmakers and a special Criminal Justice Commission have examined the issue, but the ACLU says meaningful changes haven't been made. For their part, legislators created the Idaho Public Defense Commission last year. Members have been asked to create standards, training programs and a data collection system and to keep lawmakers informed about any problems. The ACLU says that's not enough. "Astoundingly, the State failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system," ACLU-Idaho attorney Ritchie Eppink wrote in the lawsuit.
Members of the Public Defense Commission were named as defendants in the lawsuit, along with Republican Gov. C.L. "Butch" Otter and the state. Ian Thompson, the commission's executive director, declined to comment on the case, though he said members will discuss it during a meeting Thursday.
A copy of the ACLU lawsuit can be accessed at this link via the ACLU website.
Wednesday, June 17, 2015
Federal district judge declares unconstitutional Minnesota sex offender civil commitment program
As reported in this AP piece, today brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota's civil commitment program for sex offenders. Here are the basics:
A federal judge has ruled that Minnesota's sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy. U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.
Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.
Frank is calling on Minnesota government's top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.
In Wednesday's ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says "politics or political pressures cannot trump the fundamental rights" of those in the program. He stressed that the U.S. Constitution "protects individual rights even when they are unpopular."
Gov. Mark Dayton says there won't be immediate changes to the Minnesota Sex Offender Program in response to a federal judge's ruling that it's unconstitutional. In a statement that was released Dayton said, "We will work with the Attorney General to defend Minnesota's law."
Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge's ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.
The full 76-page ruling, in a case that still clearly is nowhere close to finished, is now available at this link.
Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA
As reported here by The Constitution Project, "former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act." Specifcally, The Constitution Project organized "130 former judges, prosecutors and law enforcement officials" to sign this notable letter "delivered to members of the House and Senate Judiciary Committees on June 16."
As The Constitutional Project notes, included among "those signing the letter are Judge William S. Sessions, former director of the FBI; former state attorneys general from Illinois, Pennsylvania, Tennessee and Virginia; and former state Supreme Court justices from Florida, Georgia, Mississippi, Montana and Texas." And here is how the letter gets started:
As former judges, prosecutors and law enforcement officials, we write to express our support for critical reforms to federal sentencing contained in the Smarter Sentencing Act of 2015 (SSA), S.502/H.R.920. This bill is an important step in promoting public safety and addressing unintended and expensive consequences of existing federal sentencing laws.
Nationwide, law enforcement has made significant progress in curbing violent crime in our communities. At the federal level, we trust Congress to address the parts of our sentencing policies that are simply not working. Presently, mandatory minimum drug sentences unnecessarily apply to a broad sweep of lower level offenders. These include low-level, nonviolent people whose involvement in the offense is driven by addiction, mental illness, or both. Drug offenders are the largest group of federal offenders sentenced each year, now comprising nearly half of the federal prison population. Moreover, individuals most likely to receive a mandatory minimum sentence were street-level dealers, not serious and major drug dealers, kingpins, and importers. Indeed, of the 22,000 federal drug offenders last year, only seven percent had a leadership role in the crime and 84 percent did not possess or use guns or weapons. The U.S. Sentencing Commission and other experts have found little deterrent value in sentencing low-level offenders to lengthy mandatory minimum prison terms.
Additionally, over the past three decades, our spending on federal incarceration has increased by over 1100 percent. Despite this massive investment by taxpayers, federal prisons are now at 128 percent of their capacity, undermining staff and inmate safety and prisoner rehabilitation, as well as reducing the resources available for law enforcement and crime prevention. Incarceration and detention costs have nearly doubled over the last ten years, with the Bureau of Prisons’ (BOP) budget at its current level of $7.2 billion in the President’s Fiscal Year 2016 budget request. As a nation, we are expending enormous amounts of money, but failing to keep pace with our growing prison population.
Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety. We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities. The BOP budget now accounts for approximately a quarter of the U.S. Department of Justice’s (DOJ) discretionary budget, potentially undermining other DOJ law enforcement priorities. Indeed, in 2014, the BOP’s budget grew at almost twice the rate of the rest of the Department of Justice. With more resources going to incarcerate nonviolent offenders, funding for federal investigators and prosecutors is threatened. U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions and resources for state and local law enforcement have significantly decreased. Law enforcement will continue to maximize its resources to keep our communities safe, but Congress created our sentencing scheme and needs to act to help solve these problems
As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?
The question in the title of this post captures some notable news from the GOP campaign trail this week. The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register." Here are the details from that report:
Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....
Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.
The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.
But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:
[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....
From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”
Tuesday, June 16, 2015
Notable new data and other recent posts from Marijuana Law, Policy and Reform
I am pleased to see that the growing state, national and interenation marijuana reform movement is leading to much more research on marijuana use and law enforcement activities (in Colorado and elsewhere). I have revently reported on some notable new research at Marijuana Law, Policy and Reform, and here are links to those posts (and a few other recent posts of note):
- Colorado Supreme Court affirms statutory interpretation permitting dismissal of medical marijuana user
"The Death Penalty Is Cruel. But So Is Life Without Parole."
The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie. Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Monday, June 15, 2015
Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
Regular readers know I have given lots of space recently to coverage and criticism of federal clemency efforts. I am pleased to continue now with a guest post via Beth Curtis, a prisoner advocate who runs the website Life for Pot. Beth sent this extended commentary my way under the heading "Inspired by the Dialogue between Margaret Colgate Love here and Mark Osler here on Douglas Berman’s Blog Sentencing Law and Policy":
At the launch of Clemency Project 2014 [CP-14], Craig Cesal, a non-violent marijuana offender on the Life for Pot site and his cell mate Samuel Edmonson a non-violent cocaine offender were both talking about and working on petitions for commutation. Both Craig and Samuel had sentences of life without parole and had nothing to lose.
The two cell mates had a discussion about whether or not they should file their own petitions just in case there were going to be commutations before attorneys from The Clemency Project 2014 could prepare one for them. Craig argued that the project had said there was no reason for filing on your own, as the criteria was different and it would probably have to be done again. Samuel on the other hand decided that he should be sure he had a petition in the Pardon Attorney’s office and in February of 2014, he filed a brief petition for commutation that he did himself.
Very early in the process both of these offenders were assigned pro bono attorneys from the same law firm. Samuel and Craig had initial contacts with their pro bono attorneys, but after that contact they were not contacted again and did not know if any work was being done.
In March of 2015 Samuel received a commutation for his life sentence from President Barack Obama based on the petition he filed himself.
We were interested in this because there were only three life for pot inmates that we knew of who had been assigned pro bono attorneys and they only had initial contacts. We contacted inmates and suggested that they begin preparing their own Clemency Petitions and file them, we don’t know if CP-14 will be able to overcome the cumbersome procedure.
In March of 2015 Larry Duke, a 68 year old non-violent marijuana offender with a sentence of life without parole was released. Larry’s immediate release was pursuant to 18 USC 3582(c)(1)(A)(i). The “extraordinary and compelling reasons” for the release was Larry’s status as an elderly inmate. Although Larry is over 65 he is also the healthiest of those on the Life for Pot site. Larry had a contact from a pro bono attorney through Clemency Project 2014. We called his attorney who did not know he had been released.
We started getting questions about the process for Reduction in Sentence [RIS] from non-violent marijuana offenders. They wanted to know if they should file for sentencing relief even though they had filled out a survey to request an attorney through Clemency Project 2014.
These are not legal questions, but questions about procedure and we sought answers from an attorney with CP–14. It was their considered opinion that the elder inmates should not file for RIS until CP–14 had completed the process as clemency might be held up until the (CR/RIS) was resolved.
Inmates found that BOP facilities were not aware of the elderly, over the age of 65, criteria for applying for RIS. This remedy has seldom been used and “extraordinary and compelling reasons” were interpreted by the BOP as being almost lifeless chained to a hospital bed.
How much hope should we have for this process? Was Larry Duke’s release singular, or will this be the beginning of an accelerated process? We would like to know.
The hope and promise of Clemency Project 2014 is like a breath of air for these nonviolent inmates who will be behind bars till they die if no one exercises compassion, mercy and justice. We’re listening carefully to the dialogue between Mark Osler and Margaret Love about the hope and promise for relief.
We are in the 18th month since the launch of the project and yet only two inmates have been released through this apparently clogged tunnel to freedom. Much has been written in support of clemency and its use to address serious facility overcrowding and sentencing disparity. Information about progress is scant and prisoners, their families and advocates worry about the progress and the will of the Administration.
Lately these public discussions by well-known clemency advocates pondering the most effective way to deal with the over incarceration gives us hope. Margaret Colgate Love and Mark Osler’s point counter point about it on the blog Sentencing Law and Policy by Douglas Berman gave us insight. I believe these discussions are helpful but not a substitute for more transparency and concrete information given to the inmates, their families and advocates about procedure and progress. We need to respect these vulnerable non-violent citizens.
It would be an insensitive travesty if this program that was announced with such fanfare and gave such hope to thousands of inmates, their family and friends and advocacy groups did not fulfill the promise of compassion and mercy. These non-violent incarcerated people are accustomed to broken promises, but this one can be easily fulfilled by a bold administration with the courage of their stated convictions. For years, nonviolent inmate advocates have felt that bi-partisan support would be the key to this realignment of positions and lead to fiscal responsibility and compassion. Bipartisan support has arrived and we have the promise, it just needs to be fulfilled.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Might Charles Koch put big money behind big reform of federal clemency process?
- Professor Mark Osler's informed perspective on recent federal clemency developments
- Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"
"Beyond the Numbers: Toward a Moral Vision for Criminal Justice Reform"
The title of this post is the title of this short paper by Seth Mayer and Italia Patti recently posted to SSRN. Here is the abstract:
The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform. Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions.
We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s. This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines. We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.
Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"
Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall. Here are excerpts:
Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism. These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.
It is hard to find a more wasteful and inefficient government program than the death penalty. New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case! A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....
Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof. Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty. However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified. Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.
It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office. Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...
As strong as the practical arguments against the death penalty are, the moral case is much stronger. Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good." The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.
Opposition to allowing the government to take life is also part of a consistent pro-life position. Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.
I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.
SCOTUS grants cert on a federal prisoner (re)litigation case
The Supreme Court started the week by granting review in two cases, one of which concerns prisoner rights and restrictions. The case is Bruce v. Samuels, and this SCOTUSblog page provides this account of the question presented:
Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees.
Sunday, June 14, 2015
Fascinating account of how "how neoliberalism lies at the root of the carceral state"
The always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform." The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:
Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings. So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations. Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”
This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate. But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.
For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can. Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....
[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities. The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.
That discretion could be turned toward lenience. President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency. Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007). The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association. For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.
Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions. Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....
Alleviating the root causes of poverty and inequality will take a long time. In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.
I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.
June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)
"Will Nebraska’s Death Penalty Come Back?"
The title of this post is the headline of this new New York Times editorial. The substance of the editorial makes clear that the NYTimes' answer to the question is "We sure hope not!". Here are excerpts:
In a sensible, humane move last month, Nebraska lawmakers abolished the state’s death penalty by a 30to19 vote that crossed party lines and overrode a veto by Gov. Pete Ricketts. These lawmakers aren’t renegades; an April poll by the American Civil Liberties Union of Nebraska found that 58 percent of Nebraskans supported alternatives to the death penalty, like life without parole.
Now comes the counterattack. A new group called Nebraskans for the Death Penalty has started a petition drive, supported by Mr. Ricketts, to put the issue directly before voters in 2016. Last week, they got the support of the Nebraska Sheriffs’ Association, which claimed, as Mr. Ricketts has, that public safety depends on the state’s ability to kill certain inmates.
To put the proposed referendum on the ballot, death penalty supporters have about three months to get signatures from 5 percent of registered voters, or about 58,000 Nebraskans. If they can get 10 percent, state law will put the ban on hold until the voters have a chance to weigh in. Whether the effort succeeds will depend in large part on how much money death penalty supporters can muster; paying people to go door to door asking tens of thousands of voters for their signatures doesn’t come cheap. In addition to supporting the referendum, Mr. Ricketts is insisting that he still has the legal authority to execute the 10 people remaining on Nebraska’s death row, on the grounds that the Legislature cannot alter an existing sentence. Lawmakers, however, say they have eliminated all executions. Whatever the courts may decide on this question, it remains unclear whether the state even has the means to carry out these killings....
[T]he votes of the Nebraska Legislature show that when lawmakers across the political spectrum can have an open, honest and informed debate on the issue, capital punishment is quickly exposed for the immoral, ineffective, arbitrary and costly practice that it is.
Prior related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Saturday, June 13, 2015
Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"
The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create. I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):
The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69. And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....
The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations. What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released. Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....
The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age. Sentencing judges need to consider the phenomenon of aging out of risky occupations. Violent crime, which can include trafficking in heroin, is generally a young man’s game. Elderly people tend to be cautious, often indeed timid, and averse to physical danger. Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....
There needs finally to be considered the cost of imprisonment to the government, which is not trivial. The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs. If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....
We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose. There is no indication that these considerations received any attention in this case. We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers. Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....
There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings. But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released). A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.
June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)
"The Impact of Drug Policy on Women"
The title of this post is the title of this intriguing recent report from the Open Society Institute. Here is its introduction:
In the public mind, the “war on drugs” probably conjures up a male image. In most countries, official statistics would show that men, indeed, are the majority of people who use drugs recreationally, who have problematic use, and who sell drugs. But punitive drug laws and policies pose a heavy burden on women and, in turn, on the children for whom women are often the principal caregivers.
Men and boys are put at risk of HIV and hepatitis C by prohibitionist policies that impede access to and use of prevention and care services, but women and girls virtually always face a higher risk of transmission of these infections. Men suffer from unjust incarceration for minor drug offenses, but in some places women are more likely than men to face harsh sentences for minor infractions. Treatment for drug dependence is of poor quality in many places, but women are at especially high risk of undergoing inappropriate treatment or not receiving any treatment at all. All people who use drugs face stigma and discrimination, but women are often more likely than men to be severely vilified as unfit parents and “fallen” members of society.
This paper elaborates on the gender dimension of drug policy and law with attention to the burdens that ill-conceived policies and inadequate services place on women and girls.
How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act. As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.
Helpfully, Leah Litman has already authored an article, "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality", about some of the legal issues that might follow from a big constitutional ruling in Johnson. But the question in the title of this post is focused on the practical question of just how many current federal prisoners serving ACCA sentences of 15 or more years could seek to benefit from ACCA.
This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison. Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.
Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners. Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence. Among the uncertainties which could flow from a big ACCA ruling in Johnson is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.
Some related prior posts:
- Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
- Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates
- SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
Friday, June 12, 2015
"Marijuana & Ohio: Past, Present, Potential"
The title of this post is the title of the lengthy research report that was formally released (and extensively discussed) yesterday at the Ohio Marijuana Policy Reform Symposium which I help organize yesterday. The report and related information about Marijuana Policies of Ohio Task Force that released the report can be found at this webpage.
The report is much longer and more data-heavy than anything else previously written about marijuana reform in Ohio, but this AP article discussing its findings also highlights why the report has also become the subject of criticism. The AP piece is headlined "Economics of effort to legalize pot in Ohio in crosshairs," and here are excerpts:
A Republican prosecutor who is heading a task force on marijuana legalization in Ohio said the analysis of potential impacts released by his group Thursday presents a balanced look at the issue, a claim questioned by the state auditor. Hamilton County Prosecutor Joe Deters was asked to chair the Marijuana Policies of Ohio Taskforce by ResponsibleOhio, the group advancing a legalization amendment toward the November ballot.
He said ResponsibleOhio has allowed experts on his task force the editorial freedom to put together a “straightforward assessment” of how legalization might affect law enforcement, public safety, public health and Ohio’s overall economy. “Our report doesn’t make recommendations, and it doesn’t pull any punches,” Deters said. “We’ve made a concerted effort to remain objective, take an even-handed approach and lay out both the good and the bad of legalization.”
The report estimates legalization would create 34,791 jobs in Ohio representing $1.6 billion in labor income in connection with nearly $7 billion in output from the cultivation, extraction, processing and sale of marijuana. The report said research shows legalization doesn’t lead to drastic increases in crime, in adult or teen marijuana use, or in workplace injuries -- a finding Auditor Dave Yost called rosy at best.
“There are unquestionably going to be health and safety impacts,” Yost, an opponent of legalizing marijuana, said. “This task force was stacked like a BLT. Really, in 30 days? This debate has been going on for 50 years and they did a comprehensive study in 30 days?”
The report came the same day a committee of the Ohio Constitutional Modernization Commission was reviewing draft language that would amend Ohio’s constitution to ban changes to the constitution that create monopolies or further the economic interests of select individuals. It comes partly in reaction to a piece of ResponsibleOhio’s proposal that would establish 10 grow sites, some of which investors have already purchased.
Because I spent all of yesterday at the Ohio Marijuana Policy Reform Symposium talking about this Taskforce report, I am not going to add extra commentary here yet (though lots will follow before too long at Marijuana Law, Policy and Reform). But I am hopeful that the report can help advance public information and understanding as the debate over marijuana reform heats up in Ohio and nationwide in the months ahead. Indeed, a letter from the Chair of the Taskforce, Hamilton County Prosecutor Joe Deters, stresses this point at the front of the document:
The question of changing Ohio’s approach to marijuana policy may soon be put before voters -- most likely on the November 2015 ballot. The rapid pace of change in marijuana policy across the country, however, has made it difficult to keep up with the experiences, research, and practices occurring in different states. Political arguments from all sides of this debate have made it even more challenging to separate fact from opinion....
Ohio cannot afford to make decisions about marijuana policy and law based on unsubstantiated and often unsupported talk on both sides of the issue. Ohioans need and deserve an honest and in-depth assessment of the positive and negative impacts that ending marijuana prohibition may have, so they can make up their own minds....
I look forward to continuing this important discussion throughout Ohio in the coming weeks and months.
"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"
The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.
The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.
June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs
Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case. Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:
The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem....
2) Midazolam is constitutional....
3) Midazolam is unconstitutional....
4) Midazolam is unconstitutional as part of a three-drug protocol....
5) Inmates have not proven midazolam leads to cruel and unusual punishment....
6) Send the case back to a lower court
Thursday, June 11, 2015
Imagine if the Chief could send down and call up Justices from "inferior" tribunals
The US Constitution only formally provides for and requires one (Supreme) Court, and then in Article I states that "Congress shall have power To ...constitute tribunals inferior to the Supreme Court." This reality makes perhaps constitutionally conceivable the staffing idea suggested by this amusing new Onion article headlined "Struggling Justice Alito Sent Down To Lower Federal Court."
Because he is purportedly a big baseball fan, I am hoping Justice Alito gets a kick out of how The Onion imagines the Chief Justice managing his judicial team (though I am sure he would much rather imagine having another Justice sent down):
Following weeks of declining performance within the nation’s highest judicial body, the Supreme Court announced Thursday that it has sent a struggling Associate Justice Samuel Alito down to a lower federal court. “Sammy’s been a little cold with his dissenting opinions lately, so we’ve assigned him to a minor appellate jurisdiction until he can better contribute to this court,” Chief Justice John Roberts told reporters, confirming that Alito had been removed from the Supreme Court’s nine-person roster and appointed to the U.S. Court of Appeals for the Eleventh Circuit.
“Obviously, Sammy is a veteran legal scholar who has played a deciding role in several high-profile cases, but until he regains his stroke, we need to go with someone who can best interpret statutory law as set out by the U.S. Constitution. But we’re confident that he only needs to author a few decisions in some lower-pressure situations before he’s ready to return.” Roberts added that Alito’s spot on the court would be filled by recently called-up jurist prospect Ricardo Gonzalez, a 71-year-old constructionist from the U.S. District Court for Puerto Rico.
I am pretty sure that the the Washington Nationals have as their AAA-affiliate the Syracuse Chiefs, so it would have been a bit more "accurate" for this Onion piece to say Justice Alito had been sent down to the Second Circuit.