Tuesday, May 16, 2017

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (25)

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Three new CCRC posts highlighting how collateral consequences have become a focal point for modern criminal justice reform

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and three recent postings at CCRC struck me as worth a special mention because they each in distinct ways showcase the heightened attention and concern for collateral consequences in modern criminal justice reform conversations.  (At the risk of being cheeky, one might say collateral consequences are no longer being treated as collateral by serious advocates for criminal justice reform.  

Here are these three posts that caught my eye as highlighting distinct and distinctly important institutional players paying close attention to collateral consequences:

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (1)

"The Problem with Inference for Juvenile Defendants"

The title of this post is the title of this notable new article by Jenny Carroll recently posted to SSRN.  Here is the abstract:

Much of criminal law relies on proof by inference.  In criminal law, fact finders untangle not only what happened, but why it happened.  It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts — the world in which they occurred but also the fact finder’s own world.

Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes.  As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults.

Although criminal law has long accounted for this difference procedurally — most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law.  This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret — juvenile defendants.  Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Brennan Center releases "A Federal Agenda to Reduce Mass Incarceration"

Justice agendaYesterday the Brennan Center released this notable new report which feels like it was first conceived back when everyone thought Hillary Clinton was poised to be President. Nevertheless, the report, headlined "A Federal Agenda to Reduce Mass Incarceration" speaks to current political realities in its executive summary with this paragraph:

Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.

Here are some other parts of the report's executive summary:

This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going. The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.

Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.

In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison....

To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.

Legislation

End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.

End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation.  Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes.  In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.

Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing.  Some believe that overly-zealous enforcement has reached a breaking point.  Others believe police are not adequately funded or supported. All can agree that something needs to change.  To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.

Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015.  This proposal would cautiously reduce prison sentences for some nonviolent crimes.  A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.

Executive Action

Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration. Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.

Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.

May 16, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, May 15, 2017

Reviewing some historical data on the federal prison population, total sentences imposed, and drug cases

Some of the copious commentary critical of the new Sessions Memo complains that he is "bringing back" the War on Drugs.  See, for example, Salon here, "Jeff Sessions is bringing back the drug war — and making it worse"; New York here, "Sessions Takes First Big Step Toward Bringing Back the War on Drugs."  I find this charge a bit curious because I do not think the drug war or its footprint on human lives ever really went away notwithstanding some recent efforts at the federal and state level to temper a bit its reach and impact. 

In an effort to try to see if the federal drug war at some point went away, and also driven by a desire to try to gauge the impact of federal charging policies before the Sessions Memo (as discussed here), I decided it might be useful to take a dive into US Sentencing Commission data over the past two decades to see what we could see.  The USSC has great yearly data assembled here going back to 1996, and basic federal prison population numbers are accessible here going back all the way to 1980.  Though my weak empirical skills and this imperfect blogging space will surely limit my ability to tell detailed data stories here effectively, I hope a few posts reviewing federal case processing and sentencing basics might be of some use and interest.  Here I will start with just the most basic of basics, historical data on the federal prison population, total sentences imposed, and drug cases:

Year        Federal Prison Population         Federal Sentences Imposed         Drug Sentences Imposed

1996                105,443                                        42,436                                    17,267

1998                122,316                                        50,754                                    20,368

2000                145,125                                        59,846                                    23,542

2002                163,436                                        64,366                                    25,920        

2004                179,895                                        70,068                                    24,532

2006                192,584                                        72,585                                    26,122

2008                201,668                                        76,478                                    25,500

2010                210,227                                        83,946                                    24,713

2012                218,687                                        84,173                                    25,712

2014                214,149                                        75,836                                    22,193

2016                192,170                                        67,742                                    19,945

May 15, 2017 in Data on sentencing, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Senator Rand Paul criticizes new Sessions Memo while promising to reintroduce Justice Safety Valve Act

In this new CNN commentary, headlined "Rand Paul: Sessions' sentencing plan would ruin lives," Senator Rand Paul provides a lengthy criticism of the new charging and sentencing memorandum released late last week by Attorney General Jeff Sessions (basics here).  Here are a few excerpts:

The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I'm the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement -- and the lives of many young drug offenders -- lies with the current attorney general.

The attorney general's new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation's drug epidemic for what it is -- a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have....

I want to go the opposite way from the attorney general. That's why I've partnered with Senator Leahy and once again will be reintroducing the Justice Safety Valve Act. This isn't about legalizing drugs. It is about making the punishment more fitting and not ruining more lives.

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

We need this legislation because while there is an existing safety valve in current law, it is very limited. It has a strict five-part test, and only about 23% of all drug offenders qualified for the safety valve.... Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.... Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.

I am quite pleased to see Senator Paul astutely use the new Sessions Memo to justify reintroduction and a renewed campaign for his elegant Justice Safety Valve Act (JSVA).  For a host of reasons, most notably simplicity, the JSVA has long been my favorite piece of proposed legislation to deal with the problems created by mandatory minimum sentencing statutes.   Along with Harlan Protess back in 2013, as detailed here, I even took to the pages of the Wall Street Journal to urge then President Obama to throw his support behind the JSVA. 

Given that Prez Obama never expressed support for the JSVA and that this bill never even got a vote in the Senate Judiciary Committee when under control by Democrats, I am not optimistic that the Sessions Memo will be enough to seriously enhance the JSVA's passage prospects.  But I am encouraged to see Senator Paul continuing to be an active and vocal and effective pace-setter for reform of federal mandatory minimum sentencing provisions and practices.

May 15, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

One last chance to RSVP for "Behind the Bench: The Past, Present, and Future of Federal Sentencing"

FSRAs mentioned in this prior post, I will be attending this exciting afternoon event, titled "Behind the Bench: The Past, Present, and Future of Federal Sentencing," which is taking place this Wednesday (5/17) in Washington DC.  I considered the event quite timely when I posted about it last week, but the discussions generated by Attorney General Jeff Sessions new charging memo for federal prosecutors only serves to add an extra-timely dimension to the topics to be discussed.

As mentioned before, this event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge William Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that there is still a little bit of the limited space available, so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion should still be sure to register via this webpage ASAP.

May 15, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo

As reported and reviewed a bit here, Attorney General Jeff Sessions issued on Friday this important new charging and sentencing memorandum to direct the work of federal prosecutors.  As I stated in my first post about what will be known as the Sessions Memo, I think this is a very big deal in terms of both the substantive instructions and enforcement tone being set for federal prosecutors by the new Attorney General.

But just how big a deal is the Sessions Momo?  This is a critical question that really cannot be answered for years, and all the nuanced particulars involved here cannot be unpacked in a single blog post.  But I still thought it might be useful this morning to explain what I see as the challenge of figuring out how big a deal the Sessions Memo really is.  And part of that story relates, as the title of this post suggests, to the uncertainty that must still attend any assessment of the impact and import of different charging memos released by former Attorney General Eric Holder.

To begin, I think nearly everyone who follows modern crime and punishment generally accepts what John Pfaff has been stressing for a decade concerning the impact and import of prosecutors on the severity of our criminal justice system and the size of our prison populations.  At the risk of oversimplification, Pfaff has effectively highlighted that how prosecutors do their work matters so much practically to who goes into prison and for how long.  Consequently, new DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal.  (Of course, Pfaff also stresses that the federal criminal justice system prosecutes and imprisons less than 10% of all those subject to prosecution throughout the US, so there is necessarily some ceiling on how much new guidance toward federal prosecutors will impact the nation as a whole.)

Because prosecutors matter a lot, federal prosecutorial policies matter a lot.  But just how much?  Notably, former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions: a first one in May 2010 allowing more charging/sentencing discretion, a second one in Aug 2013 urging less use of certain mandatory minimums, and a third one in Sept 2014 cautioning again using certain charges to induce a plea in drug cases.  Arguably, the May 2010 general charging/sentencing memo was the most consequential and far-reaching of AG Holder's instructions to federal prosecutors.  But if you look at the basic data assembled in this NBC News discussion of the Sessions Memo, federal prosecutorial charging practices did not appear to change all that much until after AG Holder in Aug 2013 really delivered aggressively and consistently the message that DOJ was now taking a much different approach to drug cases and others.

In some subsequent posts, I hope to unpack more fully the data on federal prosecutorial practices in the Obama years under AG Holder's guidance.  For now, my goal was to highlight that we did not see a massive sea change in federal prosecutions or sentences as soon as AG Holder first announced new guidance in May 2010.  (I also must note for those eager to praise Prez Obama and AG Holder for their reform efforts, note how Holder was not so quick off the dole.  AG Sessions set forth his policy by May of his first year in office; AG Holder took until May of his second year in charge.)  Importantly, it seems it was really only when AG Holder fully doubled down, in speeches and policy directives and other actions, on charting a much different prosecutorial path starting in August 2013 that the numbers in the federal system saw some real significant movement.  I hope to discuss that movement and its meaning in coming posts as well.

So, after a lot of words, my message here is stay tuned:  stay tuned to this blog for some coming number crunching about the Holder legacy and Sessions course change, and also stay tuned to see how AG Sessions and others inside DOJ and other parts of the Trump Administration follow up on this initial memo.  What follows may prove to be much more important than what we have seen so far.

Prior recent related posts: 

May 15, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, May 14, 2017

Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders

The Denver Post has this interesting article about the monitoring and testing of sex offenders in the Centennial State.  The piece is headlined "Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense: Psychologist calls state’s $5 million polygraph program 'grossly excessive' as state legislature examines cost."  Here are some excerpts from the extended piece:

Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.

Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses.  They also guide how offenders on parole or probation are supervised.  “The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”

But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests.  They contend too much weight is placed on what they argue is little more than junk science.  Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say.  Failure to take the tests can lead to sanctions, including eventual revocation to prison.

Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting.  Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.  “To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling.  “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”

Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015.  D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.  She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.

After his release from prison, Alt had taken 28 polygraphs, often with competing results.  The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said.  The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.

A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually.  Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.  “It is not a scientifically valid procedure,” D’Orazio testified.  “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”...

The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation.  But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements.  Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say....

In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado.  He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails.  After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.

“The Constitution applies to everyone,” Maes said.  “It doesn’t apply to everyone except sex offenders.  The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders.  You don’t see polygraphs in any other area of the law.  You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”

The Denver Post has this companion article headlined "Professional polygrapher holds position of power on state’s sex-offender treatment board: Jeff Jenks’ firm will receive $1.9 million to test sex offenders in Colorado prisons as he sits on the Colorado Sex Offender Management Board"

May 14, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

"Dismissals as Justice"

The title of this post is the title of this notable new paper authored by Anna Roberts available via SSRN. Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some more notable reactions to the Sessions Memo

I highlighted in this prior post some first-cut reactions to the new charging and sentencing memorandum released yesterday by Attorney General Jeff Sessions (basics here). Now I will highlight a few more I have seen:

From NBC News here, "Attorney General Sessions Charts Course Back to Long Drug Sentences"

From BuzzFeed News here, "Former Federal Judges Say Sessions’ New Policy Will Take Power Away From The Courts"

Also from BuzzFeed News here, "Republicans And Democrats Are Blasting The "Dumb On Crime" Sessions Order For Tougher Sentencing"

From the Wall Street Journal here, "As Jeff Sessions Pushes for Tougher Drug Sentences, Previous Policy Gets Mixed Grades"

From the Washington Examiner here, "Former US attorneys hate Jeff Sessions' memo on tougher sentences"

Prior recent related posts: 

May 14, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Former LA Sheriff gets three years in federal prison after obstruction convictions connected to corruption scandal involving county jails

This Los Angeles Times article, headlined "Ex-L.A. County Sheriff Lee Baca sentenced to three years in prison in jail corruption scandal," effectively reports on the final federal sentence handed down late yesterday to a high-profile former law enforcement official. Notably, as discussed below, the defendant here had a much more lenient plea deal rejected, was nearly acquitted at a trial, and ultimately got a prison term 50% longer than what prosecutors recommended.  Here are the details:

Former Los Angeles County Sheriff Lee Baca, once a towering, respected figure in policing, was sentenced Friday to three years in federal prison for his role in a scheme to obstruct an FBI investigation of abuses in county jails, marking an end to a corruption scandal that has roiled the Sheriff’s Department for several years.

U.S. District Judge Percy Anderson announced Baca’s fate in a downtown courtroom filled with loyal supporters on one side and the FBI agents and prosecutors who ensnared him on the other. Baca, 74 and suffering from the early stages of Alzheimer’s disease, showed no emotion as the decision was read. Before issuing the sentence, Anderson, who has dealt unsparingly with the former sheriff throughout his legal battle and last year threw out a plea deal that would have sent Baca to prison for no more than six months, unleashed a scathing rebuke of the man who ran one of the nation’s largest law enforcement agencies for 15 years.

Excoriating Baca’s refusal to accept responsibility for having overseen and condoned the obstruction ploy carried out by subordinates, the judge portrayed him as a man driven by his desire to protect his own reputation and maintain control over the Sheriff’s Department. “Your actions embarrass the thousands of men and women [in the department] who put their lives on the line every day,” Anderson said to Baca. “They were a gross abuse of the trust the public placed in you.”

The prison term, Anderson added, should serve as a deterrent to other public servants. “Blind obedience to a corrupt culture has serious consequences,” he said. “No person, no matter how powerful, no matter his or her title, is above the law.”

Baca was ordered to surrender to federal prison officials by July 25. Although he is expected to ask to remain free on bail while he pursues an appeal, it is an open question whether he will be allowed to do so. Anderson denied the same request from Baca’s second in command, former Undersheriff Paul Tanaka, who was forced to begin his five-year sentence....

In going after Baca, a team of prosecutors headed by Assistant U.S. Atty. Brandon Fox meticulously worked its way up the department’s ranks, charging lower-level figures and members of Baca’s command staff before bringing charges of obstruction of justice, conspiracy and lying against the sheriff himself.

He is the ninth person to be convicted and sentenced to prison as part of what Fox convinced several juries was a cunning conspiracy to interfere with FBI agents as they worked to gather evidence for a grand jury investigation into allegations of widespread abuse by deputies working in county jails run by the sheriff’s department. A 10th conspirator, former sheriff’s Capt. William “Tom” Carey, pleaded guilty in a deal with prosecutors and testified against Baca. Carey is scheduled to be sentenced later this month. Several other deputies were convicted in a series of trials for beating inmates or helping to cover up the abuse....

Baca’s attorney, Nathan Hochman, nearly won Baca an acquittal at a trial late last year by hammering the government for the scarcity of hard evidence tying Baca directly to the obstruction plan. That proceeding ended in a mistrial when the jury deadlocked with all but one juror voting to acquit Baca. For the second trial, however, Fox revamped his case and Anderson issued a string of rulings that hamstrung Hochman. All along, Hochman argued that while Baca was upset by the FBI investigation, he never authorized anything illegal. Tanaka, he said, was the ringleader who carried out the obstruction without Baca’s knowledge.

In giving Baca three years in prison, Anderson struck a middle ground of sorts. Federal sentencing guidelines called for a term of 41 to 51 months. Under normal circumstances, the government would have urged Anderson to come down within that range, Fox wrote in court filings.

But Baca’s age, his diagnosis last year with Alzheimer’s and medical experts’ expectation that his mind will have deteriorated badly within a few years were legitimate mitigating factors in determining his punishment, Fox said. “The interests of justice will not be served by defendant spending many years behind bars in a severely impaired state,” the prosecutor wrote. He recommended that Baca be sentenced to two years in prison.

Hochman, meanwhile, urged Anderson in court papers and again on Friday to spare Baca any time in prison, saying he should instead be confined to his home for a period of time and perform community service. In a lengthy last-ditch bid for leniency, Hochman reviewed Baca’s nearly five decades of service in the sheriff’s department, saying he served “with distinction and honor.”

The true measure of the man, Hochman insisted, was seen in the the education programs he started as sheriff for inmates and at-risk youth. Hochman submitted to Anderson letters from a few hundred of Baca’s supporters, including former Gov. Arnold Schwarzenegger and several local religious leaders. The inevitable toll from Alzheimer’s was another reason to spare him prison, Hochman said. “This diagnosis is a sentence of its own. It is a sentence that will leave him a mere shell of his former self and one that will rob him of the memories of his life,” he wrote in a court filing.

Anderson rejected out of hand the idea that Baca should avoid time in prison. He acknowledged Baca’s lengthy record as a public servant, but said it made his crimes more perplexing. "Mr. Baca's criminal conduct is so at odds with the public image he carefully crafted,” Anderson said. Like old B-movies, "you seem to have your own version of the good cop/bad cop routine … that allowed you to keep your hands clean but did not make you any less culpable.”

While the two-year sentence suggested by the government was not enough in Anderson’s eyes, the judge said he did take Baca’s failing health and career into account. Absent those factors, he said he would have imposed on Baca the same five-year sentence he gave Tanaka.

The sentence deepens the stain already imprinted on Baca’s legacy and the reputation he enjoyed as one of the nation’s most visible and respected reformers in law enforcement. While quirky to the point of being enigmatic, Baca was seen as a champion of progressive ideas, including the need for police to build strong ties to minority communities. He stepped down in 2014 with the department engulfed in the jail scandal.

May 13, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Friday, May 12, 2017

Some notable first-cut reactions to the Sessions Memo

The Hill already has two articles reporting on some notable reactions to the new Sessions Memo.  The reactions are not surprising, but they are still interesting:

Obama AG slams Sessions for shift to harsher sentencing

GOP senator: Sessions's push for tougher sentences highlights 'injustice'

Eric Holder is the AG referenced in the headline of the first article, and Senator Rand Paul is the one referenced in the headline of the second one. Senators Mike Lee and Tom Cotton also are quoted in the second article, and long time readers of this blog can likely guess the nature of their takes on the Sessions Memo.

Last but certainly not least, Bill Otis has reactions here at Crime & Consequences under the heading "Jeff Sessions Returns DOJ to Sound Charging Policy." Here are choice excerpts (emphasis in original):

This has been reported as "new" guidance, but it's not. It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.

It was right then and it's right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct -- aligning the allegations with the facts -- that I have a hard time seeing any serious objection to it.

It does allow exceptions -- that is, in practice, more lenient charging -- in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose....

It will be attacked by the Left as likely to produce longer sentences. That's probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change. We don't need less serious charging. We need less crime.

Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General's directive does just that.

Prior recent related post: 

May 12, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (28)

Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies

I have already had the pleasure of speaking with a couple of thoughtful members of the media about the new charging and sentencing memorandum released today by Attorney General Jeff Sessions (basics here), and those conversations have already reinforced my sense of how challenging it is to fully and fairly assess the import and impact of the "Sessions Memo" in our modern sound-bite world. But while I can understand and sympathize with media members struggling to fully understand and contextualize the Sessions Memo, I felt compelled to blog my frustration with media efforts like this one from the New York Daily News that in their headline and lead get the basic story fundamentally wrong:  

Attorney General demands prosecutors seek max sentences for drug offenders

Attorney General Jeff Sessions is taking the war on drugs nuclear, ordering federal prosecutors across the country to pursue the longest prison sentences possible for drug offenders and others in a reversal of Obama-era policies.

This is just flat out wrong, as the very text of paragraph four of the short Sessions Memo makes plain (with my emphasis added): "prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553."

I think it fair (though still an incomplete short-hand) to talk about the Sessions Memo demanding prosecutors to seek tougher or harsher or longer sentences, but it is dangerously wrong to assert that the Sessions memo requires pursuit of "max sentences" or "the longest prison sentences possible."  Indeed, it seems that AG Sessions very much believes that his Memo actually provides even "more play in the joints" than pre-Holder era prosecutorial guidelines.  This is evidence by the text of this speech he gave today in New York talking about his new memo, which includes these excerpts:

Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor.  And I trust our prosecutors in the field to make good judgements.  They deserve to be unhandcuffed and not micro-managed from Washington.   Rather, they must be permitted to apply the law to the facts of each investigation.  Let's be clear, we are enforcing the laws Congress passed – that is both our fundamental mission and constitutional duty.

Going forward, I have empowered our prosecutors to charge and pursue the most serious, readily provable offense.  It means we are going to meet our responsibility to enforce the law with judgment and fairness.  It is simply the right and moral thing to do.  But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors

As reported in this official Justice Department press release, "Attorney General Jeff Sessions today issued the attached memorandum [available here] establishing charging and sentencing policies for the Department of Justice." The press release further reports:

This policy was formulated after extensive consultation with Assistant U.S. Attorneys at both the trial and appellate level, as well as U.S. Attorneys and Main Justice Attorneys. It ensures that the Department enforces the law fairly and consistently, advances public safety and promotes respect for our legal system.

Attorney General Sessions will issue further remarks on the new policy later this morning.

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

This development is a very big deal, although it is not especially surprising and the thousands of federal prosecutors who implement this policy around the nation will ultimately determine how dramatically federal charging and sentencing practices change in the months and years ahead.  (And one interesting point for the historical record: the AG Sessions charging and sentencing memo is dated May 10, but it would seem the brouhaha over the Comey firing delayed its official public release.)

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, May 11, 2017

Interesting report on plea realities impacting severity of sentences for sex trafficking offenses in Massachusetts

I just saw this recent Boston Herald article, headlined "Special Report: Sex traffickers evading tough prison sentences," which highlights the ways and reasons why a new Massachusetts law designed to toughen sentencing outcomes for certain sex offenders may not get consistently applied due to plea practices and related case-processing dynamics.  Here are excerpts:

Accused pimps and sex traffickers who could face decades behind bars under state law are often being allowed to plead down to less time and reduced charges, with more than half of convictions netting minimum sentences or less, according to a Herald review.

The softer sentencing patterns identified by a Herald survey of cases prosecuted by the attorney general and the state’s 11 district attorneys come five years after lawmakers passed a much-ballyhooed sex-trafficking law billed as a get-tough measure on criminals driving the sex trade.  But prosecutors and victim advocates say the sentences highlight the long-standing challenge in bringing complex cases reliant on vulnerable and sometimes reluctant victims.

The law called for sentences of five to 20 years for those convicted of trafficking, and up to life for those who prostitute minors.  But a Herald review of 32 trafficking cases statewide found 21 defendants in a position to serve the minimum five-year sentence or less, with three getting outright probation.  At least 18 times defendants took pleas to reduced charges — avoiding a human-trafficking conviction entirely. The average sentence of all reviewed cases fell between four and five-and-a-half years.  That’s a rate state Sen. Mark Montigny, the bill’s chief sponsor, slammed as “abysmal” — and exactly what he was trying to avoid when he drafted the law.

“Never once in my career have I put a mandatory minimum in a bill, but in trafficking of children, I put one in because I didn’t want to see plea-bargaining down,” said Montigny, who decried what he called a “societal ignorance” around the seriousness of the sex trade. “It’s unbelievable. … Not much has changed. And I’m so disappointed in that.”...

Prosecutors have been able to secure some long sentences under the new law.  Tyshaun McGhee and Sidney McGee, the first defendants convicted under the statute, got sentences of 10-to-15 and 10-to-12 years, respectively, after a Suffolk County jury found them guilty.  Ryan Duntin, who plead guilty in 2015, got a 10-year sentence.

But prosecutors defended their handling of the pleaded, low-sentence cases, noting they face a web of challenges. Frightened witnesses are often battling intense trauma or substance abuse, and sometimes are reluctant to go to trial, which makes scoring a jury conviction difficult.  Other times authorities have initially brought trafficking charges against girlfriends of the pimps, known as “bottoms,” who help recruit and intimidate victims.  But they sometimes are also seen as exploited victims themselves, leading prosecutors to later bring reduced charges.

Other circumstances have played a role. In Suffolk County, one accused trafficker pleaded to receive a four- to five-year sentence after one of his alleged victims died of an overdose before trial, dealing a blow to the case. In Bristol County, prosecutors said they were forced to dismiss one case because the victim wouldn’t cooperate.

Prosecutors are also wary of forcing victims, especially minors, to take the stand and risk re-traumatizing them, said Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley. “When you’ve got victims terrified about what might come up when they take the stand ... and they’re on board with a guilty plea and we can get a 10-year or an eight-year sentence, that’s a successful prosecution,” Wark said....

Stephanie Clark, executive director of Amirah, an advocacy group that works with and houses trafficking victims, said she wasn’t surprised traffickers are getting softer sentences, given that cases hinge on victims who may back out.

May 11, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

"A Contextual Approach to Harmless Error Review"

The title of this post is the title of this new paper authored by Justin Murray and now available via SSRN. Here is the abstract:

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.

The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.

I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.

May 11, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Notable comments from AG Sessions about the opioid crisis and combatting drug problems

This press release from the Department of Justice provides the text of remarks delivered today by Attorney General Jeff Sessions at the "DEA360 Heroin and Opioid Response Summit" in Charleston, WV. I recommend the speech in full, even though some comments are familiar, and here are a few excerpts that caught my attention:

People in Washington, D.C., use the word "crisis" to describe all kinds of problems.  But this epidemic of opioid and prescription drug abuse is a true crisis.  It is ravaging our communities, bringing crime and violence to our streets, and destroying the lives of too many Americans....

Let’s start by looking at the scope of the problem.  In 2015, more than 52,000 Americans died from a drug overdose.  That means our country is losing the equivalent of a major league baseball stadium full of people every year to overdoses.  That is simply unacceptable. 

Nearly two-thirds of those deaths were from opioids — that includes heroin as well as prescription drugs such as oxycodone, hydrocodone, codeine and morphine.   Every day, 91 Americans die from an opioid overdose.  And each year, more Americans are dying from drug overdoses than from car crashes.  

What’s terrifying is that these numbers may well understate the current problem, due to the recent rise of the synthetic opioid fentanyl, which is vastly more potent than heroin.  Drug traffickers are now mixing fentanyl with other drugs, resulting in a truly deadly concoction. In just one year, largely as a result of fentanyl, overdose deaths involving synthetic opioids rose an astonishing 73 percent.  Let me repeat that, 73 percent more overdose deaths.

But this plague not only brings death, but a whole parade of horribles. The number of American babies born with a drug withdrawal symptom has quadrupled over the past 15 years.  Here in West Virginia, the situation is so bad that in some hospitals, one out of every 10 babies is born dependent on opioids....

This wave of opioid and heroin abuse also represents a crisis for law enforcement.   We know drugs and crime go hand-in-hand.   Drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.

The opioid and heroin epidemic is a contributor to the recent surge of violent crime in America.   Transnational drug cartels are working with street gangs to traffic heroin that is both cheaper and stronger than ever.  As the market for this heroin expands, these gangs fight for territory and new customers — and innocent people get caught in the crossfire.     

Drug abusers miss work, and when they do work, they don’t work well.  According to one estimate, American employers are losing $10 billion dollars a year from absenteeism and lost productivity due to opioid abuse.

Any way you look at it, this drug abuse epidemic is a multi-faced and massive crisis.  It demands an all-hands-on-deck response — from government, law enforcement, health care providers, teachers, community leaders and parents.  All of us must do our part to fight the scourge of drugs.   

As I mentioned before, we have three essential tools in this fight:  enforcement, treatment and prevention.  At the Department of Justice, our principal concern is law enforcement.  Strong enforcement is crucial to effective drug abuse prevention and treatment.

Many people say, "We can’t arrest our way out of this problem."  But no one denies we need good prevention and treatment programs.  What we must recognize is that strong law enforcement efforts are also essential.   Criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities....

The DEA has developed what they call their 360 Strategy, and deployed it to six pilot cities, including here in Charleston.  One part of the 360 Strategy is coordinated law enforcement actions against drug cartels and traffickers.   DEA’s field divisions work closely with task force partners in federal, state, and local law enforcement to identify, target and prosecute the biggest drug traffickers.  

We are also targeting links between the cartels and drug trafficking networks across our country, including violent street gangs. Another part of DEA’s 360 Strategy is diversion control.  A lot of drug abuse happens because legitimate controlled substances are diverted from their lawful purposes.... 

We are also targeting and prosecuting dishonest medical providers who violate their oaths by running "pill mills" or otherwise diverting prescription drugs from legitimate uses.  The DEA’s Tactical Diversion Squads, including one here in Charleston, do outstanding work on this front....

The goal of all our enforcement efforts is to take back our neighborhoods from drug traffickers and criminals, and give these communities breathing room.   That allows us to deploy the other tools we have to fight drug abuse:  treatment and prevention....

The best thing we can do is to keep people from ever abusing drugs in the first place.  Our nation must once again send a clear message:  illegal drug use is dangerous and deadly.  We know for a fact it destroys lives — just look around you.

Education does work.  We won’t end this epidemic in a week, or a month, or a year.  This will be a huge undertaking, both here in West Virginia and across our great country.  We must use all the tools we have: criminal enforcement, treatment and prevention programs.  

May 11, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 10, 2017

"Behind the Bench: The Past, Present, and Future of Federal Sentencing"

The title of this post is the name of this exciting afternoon event taking place next week in Washington DC.  The event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge WIlliam Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that space is limited so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion ought to be sure to register via this webpage ASAP.

May 10, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

In the year 2000... inmates in western prisons will be getting computer tablets (and will be charged for the privilege)

For whatever strange reason, I just noticed two articles about prisoners in two states being given access to computer tablets and that led me to think of referencing in my post title an old-school Conan skit.  Silly pop-culture reference notwithstanding, here are links to the articles and a few details:

"Colorado prison inmates getting computer tablets"

Every inmate in a Colorado prison will have a computer tablet by the end of 2017. That's 18,000 tablets that inmates will be able to keep in their cell.... the tablets don't come with internet access, so no Netflix or Google.

But the tablets allow inmates to make phone calls, send emails, write grievances, communicate with jail staff, order hygiene products and view their prison bank accounts. Eventually, inmates will be able to download music and games.

Prisons also are being outfitted with monitors so inmates can have video visits with family members and friends....

Virginia-based vendor Global Tell Link is spending $800,000 to outfit Colorado prisons with video monitors and tablets. The company makes its money by charging inmates and their families for phone calls, emails, video chats, music and game downloads.

Phone calls are 12 cents per minute, emails are 25 cents each, 10-minute video calls are $4 and 25-minute video calls are $10.  All phone calls and emails are monitored by prison staff.

"Tablets coming for SD inmates"

They won’t have access to Facebook or Twitter, but every inmate in South Dakota’s prison system will soon have their own tablet computer. The touchscreen devices, connected to a closed network, will be offered for free to the Department of Corrections by telephone provider Global Tel Link.

The tablets mean longer phone calls with family and friends, and text messages – without photos or attachments – and will allow inmates to pay for access to games, music and e-books through monthly subscriptions. Phone calls and text messages will be charged per minute or per message....

South Dakota will join states like Colorado, Georgia and Indiana in its embrace of tablets for inmates, which are becoming more common through inmate telecom providers.

The Minnehaha County Jail recently added a limited number of tablets from CBM Managed Services of Sioux Falls, which inmates can check out at a $5 daily rate or borrow for 15 minutes every three hours. “This is the route a lot of these commissary vendors and video vendors are going,” said Minnehaha County Jail Warden Jeff Gromer....

The tablets offer distraction, communication and education for inmates, but they offer security benefits for staff, according to Warden Darin Young at the state penitentiary. Tablet phone calls and messages are recorded and stored for potential monitoring, and tablets can be shut off or confiscated for disciplinary reasons. Inmates who lose tablets would have to use public kiosks for calls.

The clear devices carry other security advantages, as well, Young said. Paper books can hide contraband passed from inmate to inmate, for example. "You can’t pass contraband through an e-book,” Young said.

May 10, 2017 in Prisons and prisoners, Technocorrections | Permalink | Comments (5)

"Understanding Recent Spikes and Longer Trends in American Murders"

The title of this post is the title of this timely new paper authored Jeffrey Fagan and Daniel Richman and now available via SSRN. Here is the abstract:

Since 2015, homicide rates have increased in several U.S. cities, while remaining stable in many others. Examining both recent and long-term trends in homicides and other violent crime across major cities, we find no reason to believe that these increases presage a new homicide epidemic, or that we will return to the era of elevated homicide rates that persisted in many U.S. cities over three decades through the mid-1990s. The homicide spikes may be momentary upticks in the two-decade long-term decline, and may also signal a new era of unpredictable and random surges or declines during an otherwise stable period.

We note that the spikes are generally occurring in smaller cities, with the important exception of Chicago. We then look at the neighborhood conditions in high crime areas in three large cities and show how the intersection of aggressive policing tactics and social contexts likely contribute to small areas of elevated homicide rates in otherwise safe cities. In each place, harsh police tactics, social isolation and disadvantage, and unsolved murders contribute to the withdrawal of citizens and police from the co-production of security. This Essay argues for a shift in policing tactics from order maintenance and proactive police contacts—with their potential to produce injustices and indignities—to a focus on homicide investigations, with the promise both of bringing offenders to justice, creating safe spaces for everyday social interactions, and restoring trust in the police.

May 10, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (5)

US Sentencing Commission releases first issue in new series "Case Law Quarterly"

Via email, I learned that the US Sentencing Commission has released this first installment of a new publication series going by the name "Case Law Quarterly." Here is how this first publication (which runs six detailed pages) describes itself:

CASE LAW QUARTERLY provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing.  The list of cases and the summaries are not intended to be comprehensive. Instead, this document summarizes only a few of the relevant cases, focusing on selected sentencing topics that may be of current interest.  The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines.  The information in this document does not necessarily represent the official position of the Commission, and it should not be considered definitive or comprehensive.

May 10, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting that conservative voters say they support criminal justice reform efforts

Vikrant Reddy authored this National Review commentary discussing the results of a recent interesting poll (which I highlighted here) under the headlined "The Conservative Base Wants Criminal-Justice Reform."  Here are excerpts:

Last week, the Charles Koch Institute (CKI) polled several hundred conservative voters to assess whether they recognize criminal justice as an important issue currently facing the nation. While specific reasons for their interest are debatable, 81 percent of Trump voters polled described the issue as either “very important” or “somewhat important” — a definite consensus.

Ordinarily, polls that confirm the status quo are not interesting.  This poll, however, caught the attention of those who have been asking whether conservative attitudes towards criminal-justice policy may have changed since the November 2016 election.  It’s a fair question.

The new presidential administration has given mixed messages, sometimes using strong rhetoric about increasing criminal penalties, but other times speaking with thoughtfulness about expanding treatment for opioid addiction.  Some prominent administration figures, such as Vice President Mike Pence, have a history as reformers.  Others, such as Attorney General Jeff Sessions, have a history as skeptics.  The views of the president himself are unpredictable.

Furthermore, when asked if judges should have more freedom to assign punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” or “agreed.”  When asked about the practice of civil asset forfeiture, which allows law-enforcement agencies to seize an individual’s property without requiring that the individual be charged or convicted of a crime, 59 percent of Trump voters found common ground with their liberal counterparts, responding that that they “strongly disagreed” or “disagreed” with such policing practices....

People surprised by the results of the poll ought to focus on one important figure: Fifty-four percent of Trump voters said they knew someone who is or has been incarcerated. That may surprise progressives who accuse conservatives of being out of touch and aloof from criminal-justice realities, but it shouldn’t surprise anybody who works in the criminal-justice arena and regularly talks to conservatives about their views....

Increasingly, then, the Americans who experience criminal justice as a personal issue are rural conservatives. Consider the example of Oklahoma.  On the night that Trump won the presidency, voters also approved changes to the state criminal code that reclassified certain drug felonies as misdemeanors, effectively expressing the view that too many drug offenses in Oklahoma were being treated with needlessly long bouts of incarceration. Oklahomans appear to prefer better probation and parole that monitors drug offenders and provides them with treatment.  This referendum vote took place in a state in which every single county voted for Trump.  A higher percentage of people (65.3 percent) voted for Trump in Oklahoma, than in any state, except Wyoming and West Virginia. It’s hard to be “Trumpier” than Oklahoma.

Leadership matters in public policy, and for that reason, it would be good to see clear support for criminal-justice reform from the White House.  Conservative legislators and governors, however, do not need to wait for cues from the administration.  The conservative base is already providing them. They have wanted criminal justice reform for a decade, and their minds did not change because of one election.

Recent prior related post:

May 10, 2017 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

"Life Without Redemption: When 1 in 7 U.S. inmates is serving a life term, it's time to rethink our failed crime policies"

The title of this post is the headline of this notable new commentary authored by Ashley Nellis and Marc Mauer of The Sentencing Project which serves as a kind of follow-up to its recent report on life sentencing (discussed here). Here are excerpts:

A new report from our organization, The Sentencing Project, finds that an astounding 206,000 people — 1 in 7 people in prison — is serving a life term, including with or without the possibility of parole, and so-called "virtual" life sentences, where the offender faces 50 years or more. Overall, the per capita rate at which the U.S. uses life imprisonment nearly equals the entire prison population of several industrialized nations.

The number of "lifers" in prison — nearly 5 times the figure in 1984 — is an outgrowth of the movement to "get tough" that characterized sentencing policies in the 1980s and 1990s.  Along with the spread of mandatory sentencing, "three strikes" and other harsh policies, states and the federal government have increasingly sentenced individuals to life in prison.

These figures come at a moment when calls to end mass incarceration abound throughout the nation.  Despite the new punitive policy shift at the federal level led by Attorney General Jeff Sessions, many lawmakers, practitioners and civil rights organizations are advocating for a sizable reduction in what is now seen as a bloated and ineffective prison complex.  Yet the increasing use of life imprisonment suggests that substantial reductions in incarceration will be limited unless policymakers address the punishments at the deep end of the system for crimes that include violence, along with the more politically salable offenses involving drugs.

Most people serving life have been convicted of serious crimes, but among the population are over 17,000 persons convicted of nonviolent offenses and another 12,000 who were under 18 at the time of their crime. In three states, California, Utah and Louisiana, 1 in 3 prisoners is serving a life or virtual life sentence....

As is true of the justice system generally, racial and ethnic disparities are also profound among the lifer population. Today, two-thirds of those serving life are people of color.  While these individuals have generally been convicted of serious crimes, they are frequently sentenced to life imprisonment due to a prior criminal record through mechanisms such as habitual offender laws, more likely to be imposed on minorities.  Life in prison after a "third strike" might seem reasonable, but it fails to incorporate an understanding of the role of concentrated poverty, aggressive law enforcement and implicit bias that contribute to these criminal histories.

Prior recent related post:

May 10, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (35)

Tuesday, May 9, 2017

Prez Trump fires FBI director Comey based on "clear recommendation" of Deputy AG Rosenstein and AG Sessions ... and ... therefore

Because I have never worked inside the Beltway or for any part of the Justice Department, I feel that I lack any kind of special expertise to have any special perspectives on the surprising decision by Prez Trump to terminate and remove from office FBI Director Jim Comey "based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions." But I do think it useful for everyone to read these materials coming from the White House in order to understand how the decision is being justified.

Bill Otis has long worked inside the Beltways and in various parts of the Justice Department, and he has praised Comey and Sessions and Rosenstein in the past, and he now has at Crime & Consequences this initial take on the Comey firing.  I would love to hear additional perspectives from folks with or without expertise on this matters.

May 9, 2017 in Who Sentences? | Permalink | Comments (21)

New buzz about AG Sessions considering new tougher charging guidance for federal prosecutors

I had the great honor and privilege tp speak earlier today to a terrific group of judges, along with a terrific lawyer from the US Sentencing Commissions, about federal sentencing trends and developments.  We started the discussion with a particular focus on drug cases, and I mentioned that I was expecting to see new, probably tougher, charging guidelines emerging from the Department of Justice under its new leadership.  This new Washington Post article, headlined "Sessions weighs return to harsher punishments for low-level drug crimes," suggests my informed speculation here may quite soon be reality. Here are excerpts from the piece:

Attorney General Jeff Sessions is reviewing policy changes set in place by the Obama administration that eliminated harsh punishments for low-level drug crimes and could direct federal prosecutors to again charge drug offenders with crimes carrying the most severe penalties, according to U.S. officials.

The change, if adopted, would overturn a memo by then-Attorney General Eric H. Holder Jr. that instructed prosecutors to avoid charging low-level defendants with drug offenses that would trigger severe mandatory minimum sentences. Only defendants who met certain criteria, such as not belonging to a large-scale drug trafficking organization, a gang or a cartel, qualified for the lesser charges under Holder’s instructions.

If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.

“As the Attorney General has consistently said, we are reviewing all Department of Justice policies to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases,” Ian Prior, a department spokesman, in a statement to The Washington Post.

Sessions has recently peppered his speeches to law enforcement groups throughout the country with tough-on-crime rhetoric and urged Justice Department lawyers to prosecute more drug and gun cases.

The attorney general is considering having his prosecutors bring the most severe charges against drug traffickers, whether they are low-level defendants or not, according to officials who spoke on the condition of anonymity to discuss internal deliberations. Sessions also may allow prosecutors to use more “enhancements” to make sentences even longer. Under what’s referred to as “Section 851” of the Controlled Substances Act, defendants charged with a federal drug, firearm or immigration crime may face enhancements if they have previously been convicted of a felony drug offense.

Holder told his prosecutors four years ago that they should stop using enhancements except in certain cases — such as when the defendant was involved in the use or threat of violence — in an effort, he said, to make punishments more fairly fit the crime.

Holder’s changes came in August 2013 during a growing push among lawmakers and civil rights groups to roll back the strict charging and sentencing policies created in the 1980s and 1990s at the height of the war on drugs. Sen. Rand Paul (R-Ky.) was one of the sponsors of bipartisan criminal-justice legislation that would have reduced some of the mandatory minimum sentences for gun and drug crimes — a bill that Sessions opposed and helped derail....

The Holder memo was also supported by many of the U.S. attorneys in the Obama administration. But some prosecutors across the country fought Holder’s broad effort to eliminate mandatory minimum prison sentences for certain drug offenders, saying it damaged their ability to build cases from the ground up against major drug organizations.

As I noted in this post a few months ago, the new Attorney General has already issued directives that lead me to suspect that we would be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013. Indeed, I have been a bit surprised we have not yet seen new directives from AG Sessions yet in this arena, and this new Post article leads me to suspect a Sessions Memo could be coming out any day now.

UPDATE:  This New York Times article, headlined "Sessions to Toughen Rules on Prosecuting Drug Crimes," suggests that new charging guidance from AG Sessions could be released any day now.  Here is a key paragraph from the article that provides additional context for this important coming federal criminal justice development:

Current and former government officials have said for weeks that Mr. Sessions’s new policy could come at any time. They said Tuesday that they expected to see it finalized shortly, and Mr. Sessions himself has foreshadowed the announcement this year, calling for a return to tougher federal charging policies in speeches and issuing memos telling prosecutors to anticipate policy shifts.

May 9, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Dance Mom star Abby Lee Miller gets "a year and a day" for bankruptcy fraud

Today's celebrity federal sentencing news involves former "Dance Moms" reality TV star Abby Lee Miller, whose case is covered in hard-hitting fashion here via E! Online

Two years after her indictment, Abby Lee Miller has officially learned her legal fate.  The reality star, who rose to fame on the Lifetime series Dance Moms, was sentenced to one year and one day in prison followed by two years of supervised release on Tuesday, according to several reporters in the court room.  She was also reportedly fined $40,000 and ordered to pay a $120,000 judgment. She has 45 days to report to prison.

"It's a very serious situation when someone who files for bankruptcy isn't truthful with the court," Judge Joy Flowers Conti told the reality star in court.

The 50-year-old dance instructor was initially indicted in 2015 on 20 charges of bankruptcy fraud, concealment of bankruptcy assets and false bankruptcy declarations after the FBI, IRS and postal inspectors conducted an investigation.  She allegedly hid more than $755,000 in other bank accounts, income reportedly stemming from appearances on the show in 2012 and 2013....

In June 2016, Lee Miller pleaded guilty to concealing bankruptcy assets, as confirmed to E! News. Miller also pleaded guilty to one count of not reporting an international monetary transaction. In March, she also announced she was walking away from the longtime TV series.

While appearing in court Tuesday, she told the judge she was ashamed to be meeting this way and that she wished the judge could have taken her class. Lee Miller ultimately got teary eyed as she expressed regret for her actions. "I am very sorry for what I've done," she said, according to reporters. "My name has been dragged through the mud."

Prior related post:

May 9, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

Monday, May 8, 2017

New Jersey Supreme Court upholds polygraph exams for sex offenders under supervision

The New Jersey Supreme Court today issued a notable opinion rejecting challenges to the use of lie detector tests for sex offenders subject to parole or other community supervision. The opinion in J.B. v. New Jersey State Parole Board, No. 077235 (NJ May 8, 20107) (available here) gets started this way:

Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences pursuant to N.J.S.A. 2C:43-6.4.

The parolees are all convicted sex offenders who have been released into the community subject to monitoring by the Parole Board.  For substantially similar reasons, they object to the administration of periodic polygraph examinations, which are required under the terms of their parole.  The parolees raise constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests.  They also contend that the Parole Board’s regulations are arbitrary and capricious.

The Appellate Division upheld the Parole Board’s use of polygraph examinations but directed the Parole Board to adopt revised regulations to explain more clearly that the machine-generated test results cannot be used as evidence to support independent criminal charges or to impose additional sanctions.

For the reasons set forth in this opinion, we affirm but modify the Appellate Division’s opinion.  We uphold the Parole Board’s use of polygraph testing with the same limitations as the Appellate Division, but add that the Parole Board’s regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination.

May 8, 2017 in Sex Offender Sentencing, Technocorrections | Permalink | Comments (22)

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

US Sentencing Commission releases report providing overview of FY 2016 federal sentencing cases

Fig1_fy16overviewThe US Sentencing Commission just released this helpful and relatively brief data report titled simply "Overview of Federal Criminal Cases Fiscal Year 2016."  Among other useful realities, this report provides a certain kind of data marker for the end of the "Obama era" for federal caseload and sentencing patterns.  (The chart reprinted here from the report shows how the number of persons federal sentenced significantly increased during Obama's first term and significantly decreased during Obama's second term.) Here is the overview of the USSC report and key findings via this USSC webpage:

The United States Sentencing Commission received information on 67,874 federal criminal cases in which the offender was sentenced in fiscal year 2016. Among these cases, 67,742 involved an individual offender and 132 involved a corporation or other “organizational” offender. The Commission also received information on 11,991 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases.

Key Findings

A review of cases reported to the Commission in fiscal year 2016 reveal the following:

  • The 67,742 individual original cases reported to the Commission in fiscal year 2016 represent a decrease of 21.4% since fiscal year 2011, the year in which the largest number of offenders were sentenced. Drug cases continued to be the most common type of federal case, accounting for 31.6% of all cases.

  • Methamphetamine offenses continued to be the most common drug cases, representing 30.8% of all drug crimes.  The proportion of methamphetamine cases has increased substantially since fiscal year 1994, when those cases accounted for only 6.4% of all drug cases.

  • Just under half (44.5%) of all drug offenders were convicted of an offense carrying a mandatory minimum penalty; however, this proportion was the lowest it has been since fiscal year 1993.

  • Immigration cases were the second most common, accounting for 29.6% of the total federal caseload.  In fiscal year 2011, immigration cases were the most common federal crime — however, since that year the number of these cases has steadily declined.

  • Crimes involving firearms were the third most common offense, accounting for 10.8% of the total number of federal criminal convictions in fiscal year 2016.  The average sentence imposed in firearms cases was 75 months.

  • There were 6,517 fraud cases in fiscal year 2016, accounting for 9.6% of the total federal caseload; however, this number represents a 12.2% reduction from the year before.

May 8, 2017 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

A few (too-quick) sentencing notes on Prez Trump's new slate of judicial nominees ... and seeking more

This Politico article and this New York Times article both report that President Donald Trump will today be making a bunch of nominations to the lower federal courts.  Here are the basics via the Times, with links from the original:

One is Justice Joan L. Larsen, a former law clerk to Justice Antonin Scalia and law professor at the University of Michigan, who now serves on the Michigan Supreme Court. She will be nominated to the United States Court of Appeals for the Sixth Circuit, in Cincinnati.  [Another] is Justice David R. Stras, a former law clerk to Justice Clarence Thomas and law professor at the University of Minnesota, who now serves on the Minnesota Supreme Court. He will be nominated to the Eighth Circuit, in St. Louis....

Monday’s slate of nominees will be followed by additional ones at regular intervals, the White House official said.

The announcement on Monday will include three other nominees for federal appeals courts: Amy Coney Barrett, a law professor at Notre Dame and former law clerk to Justice Scalia, to the Seventh Circuit in Chicago; John K. Bush, a lawyer in Louisville, Ky., to the Sixth Circuit; and Kevin C. Newsom, a lawyer in Birmingham, Ala., who served as the state’s solicitor general and as a law clerk to Justice David H. Souter, to the 11th Circuit in Atlanta....

Mr. Trump also intends to nominate four judges to federal district courts: Dabney L. Friedrich, until recently a member of the United States Sentencing Commission, to the Federal District Court for the District of Columbia; Magistrate Judge Terry F. Moorer of the Federal District Court in Montgomery, Ala., to be a district judge there; David C. Nye, a state judge in Idaho, to the Federal District Court there; and Scott L. Palk, an official at the University of Oklahoma College of Law, to the Federal District Court in Oklahoma City.  The president will also name Damien M. Schiff, a lawyer with the Pacific Legal Foundation, which supports private property rights, to the United States Court of Federal Claims.

For hard-core  sentencing fans, at least one name on this list should immediately jump off the page: Dabney Friedrich.  She served with distinction as a US Sentencing Commissioner from 2006 to 2016, and if confirmed to the DC District Court, she will join its current Chief Judge Beryl Howell and also Judge Ketanji Brown-Jackson as former Commissioners turned DC District sentencing judges.

Digging a little deeper for additional sentencing intrigue among persons on the Trump nomination list, this post at Above the Law from last week noted that Professor Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  It will very interesting if this article gets any significant attention from folks on both the left and the right as her confirmation hearings approach.

Digging even deeper, checking out the firm bio of John Bush reveals not only that his practice areas include "White Collar Criminal Defense" but also that one of his listed "Representative Cases & Achievements" includes being "one of the attorneys who represented former Los Angeles Police Sergeant Stacey Koon in his successful sentencing appeal to the U.S. Supreme Court in the Rodney King case." 

There are many other interesting aspects to this list of nominees.  I am struck, for example, that three of the five circuit court nominees have significant histories as law professors.  But, of course, my sentencing focus makes me especially interested to think about how these and other Trump judicial nominees might shape sentencing jurisprudence.  And, as my post title indicates, I welcome and encourage reader input (via comments or email) with any additional information or thoughtful speculation about the criminal justice perspectives that some or all of these nominees will bring to their new positions.

UPDATE: A bit more looking around reveals that three of the four nominees to be federal district judges are former federal prosecutors. (The one exception appears to be Judge Nye, and he notably was previously nominated by Prez Obama for the same job that Prez Trump is now to nominate him for.) President Trump seems likely, at least based on this list of nominees, to continue a long-standing tradition of elevating a significant number of former prosecutors to the federal bench.

May 8, 2017 in Who Sentences? | Permalink | Comments (5)

Sunday, May 7, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Notable new Atlantic series "on efforts across the United States to move beyond the age of mass incarceration"

JusticeBUG_1As announced via this article a few day ago, headlined "Imagining the Presence of Justice," there is a notable new project from The Atlantic which aspires "to cover the evolution of criminal justice in America with a heightened focus on the different systems and approaches developing all over the nation." Here is more on how The Atlantic sets ups its plans followed by links to three early notable pieces in the series:

Over the past several decades, America has seen a startling divergence between crime and punishment.  While crime rates dropped steadily from the dramatic peaks of the 1990s, the nation’s incarceration rates continued just as steadily to grow.  And so, despite containing only 5 percent of the world’s population, the United States came to hold a quarter of the world’s prisoners.

We’ve covered this divergence extensively in the print and digital pages of The Atlantic, from Ta-Nehisi Coates’s landmark story on the rise of the carceral state and the devastation it wreaked on black families to Inimai Chettiar’s exploration of the many causes of the decline in crime.  Among the findings that emerge most clearly from this robust, sad literature is that the factors driving both aspects of the divergence — the fall in crime, the increasing spread of punishment — are highly complex.  Despite dawning awareness of the deep social and economic costs of mass incarceration, no one-size-fits-all solution exists to change this picture.  Rolling back mass incarceration while protecting public safety will require a legion of efforts in thousands of prosecutors’ offices, police departments, parole boards, and legislative chambers.  "What we have is not a system at all,” as Fordham University’s John Pfaff told The Atlantic's Matt Ford, "but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.”...

In collaboration with reporters across the country, we’ll highlight local initiatives that merit national attention, and talk with experts about where and how lessons from states and municipalities can be applied more broadly.  We’ll look at where the carceral state has spread beyond merely responding to crime, examine the time people spend behind bars without having been convicted, and explore how cities can depend on police to collect fines and fees from their poorest residents to make up for too little tax revenue.

The title of the project comes from Martin Luther King Jr., who included the phrase in his famous letter from Birmingham jail.  That context is worth understanding for the challenge the letter poses to us today, as America struggles to reconcile the need for public safety with the moral imperative of justice....  From his cell, King wrote the famous letter that would cleave the nation’s understanding of “law and order” right in half, arguing that the observance of an unjust law violates the moral order.  "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law,” he wrote.  He castigated "the white moderate, who is more devoted to ‘order' than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice."

Three (somewhat sentencing-related) piece from the series:

May 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, May 6, 2017

"Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Rachel Barkow and Mark Osler now available via SSRN. Here is the abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress.  We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice.  In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety.

These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking.  This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain.  A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

May 6, 2017 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (21)

Friday, May 5, 2017

Might Prez Trump conduct something of a federal "drug war" retreat through major budget cuts?

The question in the title of this post is prompted by this notable new CBS News article headlined "Trump administration proposes massive cuts to Drug Czar office."  Here are the details:

The Trump administration is looking to slash the White House Office of National Drug Control Policy (ONDCP) budget by nearly 95 percent, according to a memo obtained by CBS News.  The Office of Management and Budget (OMB) has proposed major ONDCP budget cuts for fiscal year 2018 that would cut 33 employees, nearly half the office staff, along with intelligence, research and budget functions at the agency, as well as the Model State Drug Laws and Drug Court grant programs....

The document also zeroes out funding to a number of grant programs including the High Intensity Drug Trafficking Areas (HIDTA) program and the Drug-free Communities Support Program.  These grants are "duplicative of other efforts across the Federal government and supplant State and local responsibilities," the memo states.

HIDTA serves as a catalyst for coordination among federal state and local enforcement entities, and funds task forces in 49 states across the country.  It is considered a vital tool used by law enforcement agencies to go after very high profile drug dealers and conduct in-depth interagency investigations.  The drug free communities support program is the nation's largest drug prevention program and funds 5,000 local anti-drug community coalitions across the country.  This program has also enjoyed broad bipartisan support.

President Donald Trump signed an Executive Order last month to create a presidential commission to tackle the national opioid [crisis], chaired by New Jersey Governor Chris Christie.  The Order stated that the ONDCP would be providing support for the Commission.  "I have been encouraged by the Administration's commitment to addressing the opioid epidemic, and the President's personal engagement on the issue, both during the campaign and since he was sworn into office," the ONDCP's Acting Director, Richard Baum, wrote in an office-wide email. "However, since OMB's proposed cuts are also at odds with the fact that the President has tasked us with supporting his Commission on Combatting drug Addiction and the Opioid Crisis."

"These drastic proposed cuts are frankly heartbreaking, and if carried out, would cause us to lose many good people who contribute greatly to ONDCP's mission and core activities," Baum wrote.

The staff was notified of the cuts Friday after Baum and top aides were notified of the draconian cuts last Thursday.  According to a source familiar with the discussions, Baum has been in close contact with Jared Kushner, who heads up the White House Office of American Innovation.  Baum had hoped to convince the Office of American Innovation that the ONDCP is an essential tool in combatting the opioid epidemic. The discussions did not go as planned.

"The budget process is a complex one with many moving parts," The White House said in a statement to CBS. "It would be premature for us to comment - or anyone to report - on any aspect of this ever-changing, internal discussion before the publication of the document. The President and his cabinet are working collaboratively to create a leaner, more efficient government that does more with less of tax payers' hard-earned dollars."

Due in part of some of the rhetoric used by both Prez Trump and Attorney General Sessions, there has been much talk and consternation about the prospect of the Trump Administration ramping up the federal drug war. But if these significant budget cuts become a reality, it is quite possible that the Trump Administration would be functionally doing a lot more to pull back on the drug war in his first Term than did President Obama during his first Term.

UPDATE: This new CBS News article, headlined "White House dismisses concerns over steep potential cuts to 'Drug Czar' office," includes new statements from White House officials suggesting any ONDCP cuts would not signal a drug war retreat as well as some informed reaction to the budget cutting talk:

A senior administration official suggested that if the White House decided to strip ONDCP of its agency mandate to coordinate collaboration between federal and local law enforcement and public health organizations, transitioning it into an office like the National Security Council or National Economic Council. The official said cuts would "by no means signal the commitment to winning the war on drugs is lessened." The senior administration official pointed to dozens of drug programs across many federal agencies as evidence that the White House is committed to anti-drug efforts, even if the ONDCP loses its ability to issue grants.

But Rafael Lemaitre, a former top spokesman for the ONDCP, countered that the reason the ONDCP was created in the first place was to coordinate these programs into one comprehensive strategy for the president. "Creating chaos at ONDCP or eliminating the agency will mean that each of the bureaucrats who run each those long list of programs and are spread out across government will have no single point of contact or direction to follow," Lemaitre said. "Efforts will be duplicated. Presidential priorities won't be followed. Ineffective programs will continue."...

Scores of former government officials, doctors, community based organizations, law enforcement officials and officials at drug treatment and prevention programs agree. In a letter to senior White House adviser Reed Cordish, dozens called on the White House to maintain ONDCP's funding and strong national influence.

"As we have written before, ONDCP brings essential expertise to the table on complex drug issues, expertise that would otherwise be missing or dispersed across multiple agencies," the letter states. "ONDCP holds all federal, state, and local agencies accountable for achieving specific goals to reduce drug trafficking, use, and other consequences."

Kevin Sabet, the head of Smart Approaches to Marijuana and a three-time ONDCP adviser who distributed the letter, did not mince words. "To slash anti-drug finding during this opiate and marijuana crisis is exactly the wrong move at the wrong time," he said. 

May 5, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (16)

"Mass Monitoring"

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

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

May 5, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (4)

Stories of severe federal sentences and the judges forced to impose them

Two different news sources this morning have these two equally interesting pieces about federal sentencing practices and federal judges struggling with their sentencing responsibilities:

May 5, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, May 4, 2017

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

The title of this post is the title of this paper authored by Jordan Hyatt and Steven Chanenson recently posted to SSRN. Here is the abstract:

At-sentencing risk assessments are predictions of an individual’s statistically likely future criminal conduct.  These assessments can be derived from a number of methodologies ranging from unstructured clinical judgment to advanced statistical and actuarial processes.  Some assessments consider only correlates of criminal recidivism, while others also take into account criminogenic needs.  Assessments of this nature have long been used to classify defendants for treatment and supervision within prisons and on community supervision, but they have only relatively recently begun to be used — or considered for use — during the sentencing process.  This shift in application has raised substantial practical and policy challenges and questions.

This paper, supported by the U.S. Department of Justice’s Bureau of Justice Assistance, directly addresses these issues and provides information and examples from a range of jurisdictions, including some which have integrated at-sentencing risk assessment programs in place or are in the process of doing so.  Derived from a survey of judges, as well as a series of interviews with stakeholders from across the nation, opportunities for future research and planning to guide the cautious engagement with at-sentencing risk assessment are identified.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

"Will Rod Rosenstein serve as a check on the attorney general, or will he tolerate his boss’s unabashed cheerleading for Trump?"

UntitledThe loaded question in the title of this post is the subheadline of this interesting new Slate piece by Leon Neyfakh with the main headline "The Man Who Could Stop Jeff Sessions." The piece is an extended profile of the fellow who was recently officially confirmed by the Senate to be the second-in-command at the US Justice Department. Here is part of the piece:

Rod Rosenstein — who joined the DOJ in 1990 as a trial attorney in the public-integrity section of the criminal division and most recently spent 12 years as the U.S. attorney for Maryland — is known in legal circles as a consummate professional who has never allowed politics to interfere with his decision-making.  The new deputy attorney general was, famously, the only U.S. attorney appointed by George W. Bush who was asked to stay on by Barack Obama — a merit badge that suggests he has been consistently even-handed in dealing with people from both sides of the aisle.  It’s a reputation that has attached itself to Rosenstein like a very flattering glue. Practically every profile of him includes words like apolitical, principled, and independent.  At his confirmation hearing in March, Maryland Sens. Chris Van Hollen and Ben Cardin called him, respectively, a “fair and focused administrator of justice” and a prosecutor who has conducted himself in “a totally nonpartisan, professional manner.”

In his new job overseeing the DOJ’s day-to-day operations, the 52-year-old Rosenstein is expected to bring a degree of normalcy and structure to an agency that, three months into Trump’s presidency, remains severely understaffed at its top levels. The extent to which he is allowed to assert his principles in running the department — and the extent to which he’s able to exert influence over the attorney general — will be a huge factor in determining what kinds of actions the DOJ takes under Trump and Sessions.

The differences between how Rosenstein and Sessions think about the Justice Department’s role in the federal government are manifest. Where the former seems to buy into an idealized vision of the agency as a nonpartisan instrument of pure law enforcement, Sessions has already demonstrated a gleeful willingness to align himself and his agency with the Trump administration....  Sessions is, of course, a key member of Trump’s cabinet. He was also an enthusiastic adviser to the Trump campaign back when he was a senator and was the first member of Congress to endorse him during the Republican primaries. On account of that history, and his well-established ideological kinship with Trump, Sessions’ continuing closeness to the president makes sense.  And yet there are good reasons to be concerned about a sitting attorney general who is unapologetically loyal to the president.

“There is an inherent tension in the role of attorney general,” said Michael Vatis, who served in the office of the deputy attorney general from 1994 to 1998. “Just like every other cabinet member, he is a political appointee who is supposed to be working the president’s agenda, but at the same time, it’s important for him to maintain a sense of independence from the White House, because inevitably, the Justice Department and the people who work under the AG are going to have to conduct investigations … that have some political element to them.” For those investigations to have credibility, Vatis continued, “you can’t have people in the country thinking … the investigation is not going to be conducted fairly, because the AG is just going to look out for the president’s political interests.”...

For many career lawyers at the DOJ, as well as alumni who have been watching the Trump administration’s manhandling of their beloved agency with increasing horror, Rosenstein’s hiring is a reason to feel cautiously optimistic about the agency’s future.  “He’s a career DOJ guy,” said one agency staffer, speaking on condition of anonymity. “The career people and the long-termers view him as a known quantity.  If they don’t know him personally, they know people who do.  If I had to surmise what the rest of the department thinks, I would guess they’re thinking, ‘OK, this is someone we can work with.’ ”

How much power will Rosenstein have as deputy attorney general? Potentially a great deal. “Obviously the attorney general is the final decision-maker and the visionary for the department. He’s in charge. … But the DAG’s office is essentially the nucleus of the department.  It’s where major litigation is overseen, and it’s where policy initiatives are led,” said Mónica Ramírez Almadani, who served in the DAG's office during the Obama administration....

The fact that Rosenstein himself seems to take great pride in his professionalism and independence raises the question of how he will respond when his boss engages in the kind of actions the administration’s critics see as inappropriately political.  How far will he be willing to go, for instance, to defend the scores of police chiefs around the country who have argued that the immigration crackdown Sessions is demanding will impede their ability to effectively fight crime?  This is what current and former DOJ alumni are waiting to find out: Will Rosenstein serve as any kind of check on the new regime — someone who will tame Sessions’ most aggressive political instincts and push for greater distance between the DOJ and the White House — or will he fall in line and tolerate Sessions’ unabashed cheerleading for Trump?...

“I don’t know how much influence he’ll have on Sessions,” said Richard Jerome, who worked in the associate attorney general’s office from 1997 to 2001. “[Sessions is] a pretty strong personality, he’s certainly not new to Washington, and he has his own views. There’s not much that’s going to change his approach.”

One important factor to consider is that Sessions probably doesn’t believe that “politicization” of the DOJ is the unforgivable sin that many liberals make it out to be. Indeed, it’s fair to argue that the agency is by definition political and has always been in alignment with the administration it exists to serve.  Pretending otherwise, according to this line of thinking, is a form of naïveté: While most people agree that the DOJ should be “nonpartisan” in the sense that a Republican-led agency shouldn’t make it its mission to go after Democrats, the notion that someone like Sessions should try to suppress or hide his ideological priors is a nonstarter.  It’s not clear that it’s even possible for the Sessions DOJ to create distance between itself and the White House, considering that the ideas Sessions believes in most fervently — deporting illegal immigrants, reducing drug use through incarceration, and reducing federal scrutiny of local police departments — are the same ones Trump ran on as a candidate, and has embraced as president....

Still, the AG and the president can be on the same page ideologically without becoming so closely aligned that doing right by the administration becomes more important than doing what’s right.  This is the true meaning of “independence” — and in Rosenstein, Sessions has a deputy whose career has been defined by a belief in its importance. Let’s see if he continues to uphold that belief while working in Sessions’ shadow.

May 4, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

The Sentencing Project reports on "America’s Increasing Use of Life and Long-Term Sentences"

The Sentencing Project yesterday released this significant new report titled "Still Life: America’s Increasing Use of Life and Long-Term Sentences." Here is its introduction:

The number of people serving life sentences in U.S. prisons is at an all-time high. Nearly 162,000 people are serving a life sentence -- one of every nine people in prison.  An additional 44,311 individuals are serving “virtual life” sentences of 50 years or more. Incorporating this category of life sentence, the total population serving a life or virtual life sentence reached 206,268 in 2016.  This represents 13.9 percent of the prison population, or one of every seven people behind bars. A mix of factors has led to the broad use of life sentences in the United States, placing it in stark contrast to practices in other nations.

Every state and the federal government allow prison sentences that are so long that death in prison is presumed.  This report provides a comprehensive profile of those living in this deep end of the justice system. Our analysis provides current figures on people serving life with parole (LWP) and life without parole (LWOP) as well as a category of long-term prisoner that has not previously been quantified: those serving “virtual” or de facto life sentences.  Even though virtual life sentences can extend beyond the typical lifespan, because the sentences are not legally considered life sentences, traditional counts of life-sentenced prisoners have excluded them until now.

KEY FINDINGS

• As of 2016, there were 161,957 people serving life sentences, or one of every nine people in prison.

• An additional 44,311 individuals are serving “virtual life” sentences, yielding a total population of life and virtual life sentences at 206,268 – or one of every seven people in prison.

• The pool of people serving life sentences has more than quadrupled since 1984.The increase in the LWOP population has far outpaced the changes in the LWP population.

• There are 44,311 people serving prison sentences that are 50 years or longer. In Indiana, Louisiana, and Montana, more than 11 percent of the prison population is serving a de facto life sentence.

• Nearly half (48.3%) of life and virtual life-sentenced individuals are African American, equal to one in five black prisoners overall.

• Nearly 12,000 people have been sentenced to life or virtual life for crimes committed as juveniles; of these over 2,300 were sentenced to life without parole.

• More than 17,000 individuals with an LWP, LWOP, or virtual life sentence have been convicted of nonviolent crimes.

• The United States incarcerates people for life at a rate of 50 per 100,000, roughly equivalent to the entire incarceration rates of the Scandinavian nations of Denmark, Finland, and Sweden.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, May 3, 2017

PBS Frontline covers the impact of Miller via "Second Chance Kids"

Pbs-frontline-merged-logoAs detailed via this posting, the PBS series Frontline premiered a new documentary last night titled Second Chance Kids. Here is a kind of preview from the posting:

What happens when prisoners convicted of murder as teenagers are given the chance to re-enter society? In the wake of Miller v. Alabama — the 2012 Supreme Court ruling that found mandatory life sentences without the chance of parole for juveniles unconstitutional — some 2,000 offenders across the country are hoping to find out.

With unique access, the new FRONTLINE documentary, Second Chance Kids, follows the cases of two of the first juvenile lifers in the country to seek parole following the landmark ruling — including Anthony Rolon of Massachusetts.

At age 17, Rolon stabbed 20-year-old Bobby Botelho to death. He was given life without parole during the country’s crackdown on so-called juvenile “superpredators” — teenagers who were labeled violent, dangerous and incapable of change. The theory, which was popularized by academics and embraced by Democrats and Republicans alike, resulted in disproportionately extreme sentencing of black and Latino youths.

As the documentary explores, the “superpredator” theory has now largely been discredited and disavowed. And a series of Supreme Court rulings, relying heavily on developmental science, has said that the personal circumstances of teenage offenders must be taken into account when they’re sentenced. The court has also ruled that many of them should have the chance to prove they’ve changed.

In the above excerpt from Second Chance Kids, go inside the parole hearing that will decide Rolon’s fate. Watch as Rolon and his legal team plead for his release after 18 years, and as Botelho’s family argues against it.

As juvenile offenders across the country await their potential re-sentencing, the documentary asks tough questions about crime and punishment in America, and what happens when some offenders are given a second chance.

The PSB website allows one to watch the documentary in full, and it also has these two companion articles:

"They Were Sentenced as “Superpredators.” Who Were They Really?"

"How Brain Science Is Changing How Long Teens Spend in Prison"

May 3, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"

The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

May 3, 2017 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, May 2, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (21)

Florida legislative debate provides interesting sign of the modern mandatory-minimum drug sentencing times

This new local article from Florida, headlined "Steube bill aimed at curbing overdoses sparks drug sentencing debate," highlights how legislators even in traditionally "tough" states are starting to have much more nuanced discussions about mandatory minimum sentencing proposals. Here are the interesting details:

Legislation aimed at tackling the opioid epidemic in Florida sparked a debate about mandatory minimum drug sentences in the state Senate Tuesday, prompting an amendment that put the measure sponsored by two Southwest Florida lawmakers in jeopardy.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, have been pushing a bill that would establish penalties for the possession of large amounts of fentanyl — a powerful synthetic opioid often laced with heroin — and its many derivatives.  Manatee and Sarasota counties were the top two communities in the state for fentanyl-related deaths per capita in 2015, according to the Florida Medical Examiners Commission.  Fentanyl was responsible for 911 deaths across Florida in 2015, and continues to be a major health crisis across the state.

But mandatory minimum drug sentences have come under increasing scrutiny nationwide and there is bipartisan concern in the Florida Legislature about what many lawmakers view as overly harsh sentencing laws.  The fentanyl bill — with the mandatory minimums included — already has passed the House, but both Republicans and Democrats in the Senate took aim at the sentencing aspect of the bill Tuesday.

The Senate amended the bill — over Steube’s objections — to strip out the mandatory minimums, which included at least three years in jail for possession of between four and 14 grams, at least 15 years for possession of between 14 and 28 grams and at least 25 years for possession of more than 28 grams. That amendment may kill the bill. Boyd does not seem inclined to push for it now, saying in a text message: “I don’t believe the bill deals with this deadly opioid problem” as amended.

Boyd said if the House takes up the Senate bill he would seek to strip off the sentencing amendment. But that likely would keep it from clearing the Senate. Steube noted that the amended legislation still makes possession of large amounts of fentanyl a crime for the first time.  “We’re still taking — in my opinion — a good step in the right direction,” Steube said of the amended bill.

The Senate debate showed the appetite within the chamber for criminal justice reform, an issue that has been championed by Republican Senate President Joe Negron.

Some lawmakers argued that any reforms tackling mandatory minimum sentences should be done in a comprehensive way and that the fentanyl bill was not the right place to start the discussion. “I have some concerns about how we have these bills come along and we put minimum mandatories on them every year,” said Sen. Rob Bradley, R-Fleming Island. But Bradley added that the Senate needs to have a “global discussion” about the issue and argued against the amendment.

Sen. Jeff Brandes, R-St. Petersburg, countered that “it’s the right conversation to have because minimum mandatories don’t work in my opinion.”  Judges need to have discretion over when to crack down and when to show leniency added Sen. David Simmons, R-Altamonte Springs. Tough drug sentencing laws can destroy lives, he said.

Steube said he is sympathetic to concerns about mandatory minimums but believes reform efforts should start with a drug such as marijuana that is not deadly.  “I certainly didn’t want this bill to be the bill that’s talked about,” he said.

The amendment was proposed by Sen. Randolph Bracy, one of the few Democrats in the chamber to chair a committee.  The Orlando lawmaker was not expecting the amendment to generate such a robust debate.  He hopes to address the issue of mandatory minimums in a broad way in his committee next year.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Tell the Client's Story: Mitigation in Criminal and Death Penalty Cases"

263155631_Def_LThe title of this post is the title of this notable new collection of essays edited by Edward Monahan and James Clark and produced by ABA Book Publishing.  Here is a description from the ABA website:

Tell the Client's Story provides litigation teams the best strategies for effective mitigation work in criminal and capital cases.  Top mitigation experts from across the nation with demonstrated practice wisdom will help readers to successfully litigate complex criminal cases.  The book also utilizes significant legal, social science, and behavioral science research findings that will inform practitioners on multi-disciplinary approaches to crafting courtroom strategy.  Using practical case studies, surveys, checklists, and appendices that are grounded in multi-professional scientific and clinical literatures, this book will give readers approaches to cogently and persuasively present mitigation evidence to decision makers.  In addition to understanding the law and ethics of mitigation, you will learn how to:

• Develop consistent arguments for life imprisonment -- rather than death -- and mitigated sentences in other criminal cases through effective storytelling and theme-building;

• Build productive relationships with clients, witnesses, and experts;

• Utilize the Capital Jury Project's empirical findings for successful jury selection and persuasion;

• Develop robust case theories;

• Collect and organize information crucial for compelling mitigation;

• Create a winning mitigation team and employ the cutting-edge methodology of structured case review;

• Proactively manage media coverage for positive mitigation outcomes, and

• Effectively present mitigation evidence at pretrial, voir dire, and penalty phases.

This book will benefit seasoned defense professionals, while also providing crucial guidance for attorneys and other professionals with limited or no experience in mitigation techniques.

May 2, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

US Justice Department releases "data on incarcerated aliens"

I just received notice of this new Department of Justice press release titled "Pursuant to Executive Order on Public Safety, Department of Justice Releases Data on Incarcerated Aliens." Here are excerpts:

President Trump’s Executive Order on Public Safety in the Interior of the United States requires the Department of Justice to collect relevant data and provide quarterly reports on data collection efforts. The data in this release shows a significant prison population of incarcerated aliens.

“Illegal aliens who commit additional crimes in the United States are a threat to public safety and a burden on our criminal justice system,” said Attorney General Jeff Sessions. “This is why we must secure our borders through a wall and effective law enforcement, and we must strengthen cooperation between federal, state and local governments as we strive to fulfill our sacred duty of protecting and serving the American people.”

Below is a summary of data collected under Section 16 of the Order, which directs “the Secretary [of Homeland Security] and the Attorney General . . . to collect relevant data and provide quarterly reports” regarding the following subjects: (a) the immigration status of all aliens incarcerated under the supervision of the Bureau of Prisons; (b) the immigration status of all aliens incarcerated as federal pretrial detainees; and (c) the immigration status of all convicted aliens in state prisons and local detention centers throughout the United States....

By way of satisfying the department’s first quarterly report of this data, below is information regarding aliens currently incarcerated under the supervision of BOP. This data is current as of March 25, 2017:

There are 45,493 foreign-born inmates currently in BOP custody, of which 3,939 are U.S. citizens (either naturalized or derivative). Of the remaining 41,554 foreign-born inmates (aliens):

  • Approximately 22,541 (54.2 percent) are aliens for which final immigration orders have been issued for their removal;

  • Approximately 13,886 (33.4 percent) are aliens who are under ICE investigation for possible removal;

  • Approximately 5,101 (12.3 percent) are aliens still pending adjudication (in other words, ICE has charged these aliens as removal cases, but a final disposition has not yet been reached); and

  • Approximately 26 (0.1 percent) are aliens who have been granted relief on the basis of asylum claims.... 

At the department’s direction, US [Marshals Service] has begun providing ICE with complete data on all foreign-born detainees on a daily basis.  The first of these data transfers to ICE took place on April 5, 2017, with a transfer of data associated with approximately 19,000 foreign-born detainees.  ICE anticipates that its analysis of this data will soon be complete, and the department will then provide an updated status report.

May 2, 2017 in Data on sentencing, Prisons and prisoners, Who Sentences? | Permalink | Comments (15)