Tuesday, December 22, 2015

Could a profit motive help improve recidivism rates (and criminal justice programming more generally)?

The question in the title of this post is prompted by this intriguing new article by Alana Semuels in The Atlantic headlined "A New Investment Opportunity: Helping Ex-Convicts; A New York program asks outsiders to fund a promising initiative to reduce recidivism. If it gets results, they get a payout." Here is how the article gets started:

Every year, the government spends billions of dollars on programs designed to help America’s neediest citizens.  In many cases, whether these programs work is anyone’s guess.

Less than $1 out of every $100 of federal government spending is “backed by even the most basic evidence that the money is being spent wisely,” wrote Peter Orszag, the former head of the Office of Management and Budget, and John Bridgeland, the former director of the White House Domestic Policy Council, in a 2013 piece in The Atlantic. In their article, Orszag and Bridgeland advocate for a “moneyball for government,” arguing that an era of fiscal scarcity should force Washington to become more results-oriented.

A new partnership among New York State, 40 private investors, and a nonprofit called the Center for Employment Opportunities seeks to apply this sort of thinking to an area of policy that has been particularly resistant to interventions: lowering the recidivism rate in an era of growing prison populations.

The investors, including private philanthropists and former Treasury Secretary Larry Summers, have put up a total of $13.5 million to fund an expansion of the work that an organization called the Center for Employment Opportunities (CEO) already does with people coming out of prison.  CEO’s model is simple: It prepares people who have criminal records for the workplace, gives them up to 75 days of temporary employment, and then helps them find jobs of their own.  With the $13.5 million, CEO will work with an additional 2,000 clients, targeting the highest-risk people.

But the expansion of the program isn’t charity: The project is a so-called “Pay for Success” initiative, modeled after social-impact bonds, which were first used in the United Kingdom five years ago.  The basic idea is that investors fund a program that has a promising approach, putting in place extensive data-collection points so that they can track the program’s results.  The investors are betting on the idea that the program can do a better — and less expensive — job of providing a given service than the status quo.  If they’re right, and the program meets certain expectations — in this case the benchmarks for success are to reduce recidivism by eight percent and increase employment by five percent — the government will have saved money in less prison spending.  The government then pays back the investors with its savings.  If the program succeeds, investors can earn a return.  If it exceeds those goals substantially, investors can get a bigger return, which in this case is capped at 10 percent.  The state at no point spends more money than it would have spent incarcerating the 2,000 individuals anyway.

The Pay for Success strategy isn’t just a way to test CEO’s model.  It’s a way to bring careful, data-based monitoring of a program’s effect into government spending.

There are dozens of programs that seek to help people re-enter the community once they’re released from prison.  They provide job training and housing assistance and college-preparation classes and counseling.  But a lot of people still end up back in prison.  About 700,000 individuals are released from prison nationally each year; the national recidivism rate is about 40 percent.

CEO can make a dent in this, its backers say, because it gives its clients something more: a job.  Clients come in, go through a week of job-readiness training, and then get a pair of steel-toed boots and a spot on one of CEO’s five-to-seven-person crews.  The crews rotate through the city, cleaning courtrooms and performing maintenance on community-college buildings and public-housing properties.

Getting clients back into the workforce, even temporarily, is a key part of CEO’s program, Sam Schaeffer, the executive director of CEO, told me.  People who have never worked, or who haven’t worked in decades find themselves furnished with a metro card, a place to be every morning, and a supervisor to report to.  “You’re earning a daily paycheck, and all of a sudden you’re getting on the subway, with that metro card that you couldn’t afford two weeks ago and you're reading the paper, and you’re sort of like, ‘Yea, I can do this,’” he said.

December 22, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 21, 2015

Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium

As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday."  Here is more from the article about this notable ruling from the top court in the Keystone State:

In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania.  The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.

Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued.  That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.

But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."

The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....

Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive."  A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.

Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."

Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.

Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.

The ruling of the Pennsylvania Supreme Court today in Pennsylvania v. Williams is comprised by  this majority opinion and this concurring opinion.

Prior related posts:

December 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others

635603709893412683-cuomoAs reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative.  Here are just some of the details from the press release:

Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.

The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....

By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.

The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....

Agency staff will make a recommendation to the Governor to grant a pardon if:

The person was 16 or 17 at the time they committed the crime for which they were convicted.

At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.

The person has been conviction-free since that time.

The person was convicted of a misdemeanor or a non-violent felony.

The person was not originally convicted of a sex offense.

The person is currently a New York State resident.

The person has paid taxes on any income.

The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.

In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.

The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....

With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.

Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.

December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Astute review of factors killing the death penalty ... with a questionable final assessment

20151219_USD001_0The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out."  I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement.  First, here are extended excerpts along with the closing paragraph:

Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976.  A ghoulish web page lists the inmates admitted to Texas’s death row.  Only two arrived in 2015, down from 11 the previous year.

There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment.  Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped.  Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer.  Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.

The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong.  Fairly soon, someone will be the last person to be executed in America.  The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects.  So, whodunnit?  Who killed the death penalty?

Where politicians follow, voters often lead.  Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning.  Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....

The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences].  So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment.  Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....

Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute.  But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....

To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer.  Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....

Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry.  Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....

Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution).  Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls.  The death penalty’s coup de grace may come in the form of an empty vial.

Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all.  In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them).  He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.

Cue much lawyerly soothsaying about that prospect.  Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors.  Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania.  The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.)  These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.

Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions.  As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society.  In the final verdict, America’s death penalty has killed itself.

This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise.  But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States.  Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California.  Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.

Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US.  If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon.  But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."

It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence.  Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values.  And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.

December 21, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13)

Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison

As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:

Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.

Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.

The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.

It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.

“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”

The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.

Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.

And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.

The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here:  Download Opinion Granting Injunction

December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

"'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution"

The title of this post is the headline of this intriguing paper I just came across on SSRN authored by Samuel Bray.  In addition to getting me thinking about the cool word hendiadys, this paper provides some interesting ideas for fans of Eighth Amendment.  Here is the abstract:

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.”  Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship.  That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning.  It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.”  When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual.  Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty.  If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action.  The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland.  The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

December 20, 2015 in Recommended reading, Sentences Reconsidered | Permalink | Comments (3)

Saturday, December 19, 2015

An early set of takes on Prez Obama's clemency work to date

As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates.  And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined."  I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.

Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant.  Here are his recent postings, all of which merit checking out:

December 19, 2015 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

"On sentencing reform, we have to talk more about reentry"

The title of this post is the headline of this notable new commentary authored by Ashley McSwain recently published by The Hill. Here are excerpts:

Congress displayed a refreshing and all too rare example of bipartisanship this fall when the Judiciary Committee voted 15 to 5 to move the Sentencing Reform and Corrections Act of 2015 to a floor vote. If it passes, the bill would mark a significant step in fixing our broken criminal justice system. Thirty years of tough-on-crime policies — such as mandatory minimum sentencings and three-strike policies for drug-related crimes — has led to over a 750 percent increase in our prison population. People go in, but they don’t come out.

Congress can change that. But in order to ensure success, our communities need to rethink how we help citizens return to the community once their time is served -- what we call “reentry.” As we talk about sentencing reform, we have to talk more about reentry and rehabilitation. It’s not enough to simply reduce sentences; we need to increase access to education, housing, job training, mentorship, and counseling to prepare people to reenter....

As the executive director of Community Family Life Services — a non-profit organization located in the shadow of the Capitol building – We work with women and men everyday who are returning home following a period of incarceration. When they are released from prison or jail, many are homeless, have limited clothing or any possessions other than what they brought to prison. Many don’t have adequate job training or updated skills to reenter the work force. Finally, they don’t have strong family or community supports which are central to a successful reentry strategy.... Faced with these challenges, returning citizens are at high-risk of drug addiction, recidivism, and even death. Without robust reentry programs, sentencing reform will be all for naught.

Currently, the Sentencing Reform and Corrections Act of 2015 calls for increasing rehabilitation programs for “eligible” prisoners over the next six years and monitoring reentry. That’s a good start, but it’s not nearly enough. But it’s also not up to Congress alone. It takes a village. As we rethink sentencing laws and work towards a more just and equitable criminal justice system, we need to come together — government agencies, foundations, non-profits, individuals — and help create livable communities here in Washington, D.C. and across the country.

The Federal Bureau of Prisons should be encouraged to forge more relationships with reentry programs and encourage those in prison to work towards rehabilitation from day one, regardless of the length or terms of their sentences. We need more citizens to volunteer as mentors and work with men and women both in prison and out of prison to ensure each returning citizen has the support, strength, and resolve necessary to make the transition to open society and live up to their full potential....

As Congress considers a vote on the Sentencing Bill, I invite members to visit us at 3rd and E St NW. Talk to the women returning home to DC so they can better understand the challenges they face and what it will take for them to succeed. Every person who steps into our resource center is capable of a successful reentry, but they need our support — everyone’s support — to achieve it.

December 19, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Friday, December 18, 2015

Updating the bubbling lower-court vagueness mess six months after Johnson

Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States."  Here is how it gets started:

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive.  The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”  By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.

In the last four months, that circuit split has deepened.  And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.”  So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.

More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive.  The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause.  And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.

In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive.  I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.

In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague.  There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced.  The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.

December 18, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (5)

Prez Obama commutes 95 federal prison sentences and grants 2 pardons

As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals."  The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions.  For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":

In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.

"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."

"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.

December 18, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

"Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration"

The title of this post is the title of this notable new paper available via SSRN authored by Jonathan Simon and Stephen Rosenbaum. Here is the abstract:

Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities.  New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted.  A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties.  Today, we seem to be arriving at another turn in the familiar cycle.  A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.

December 18, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Effective accounting of how hard it is to account accurately for intricacies of modern mass incarceration

1-OdMX2oryFZyj4uCuqW5n8wThe strangely named Xenocrypt on the website Medium has a terrific new posting titled "Why You Don’t Understand Mass Incarceration." I recommend a full read of this lengthy post, and here are excerpts highlighting why:

“Mass incarceration” usually refers to the historically high U.S. incarceration rate, which is the share of the population in state and federal prison at any given time.  Starting in 1980 or so, incarceration rates had huge growth after decades of relative consistency....

But there’s a big problem.  The incarceration rate  —  who’s in prison right now — follows from two basic questions, which those famous graphs (and phrases like “the prison population”) mash together:

1. Who did we send to prison in the first place, and for what?  How much has “mass incarceration” meant expanded incarceration?  Which people are going to prison who’d never have gone under other policies? There’s a moral version of the question, too: What should we send people to prison for?

2. How long were they in prison for?  How much has “mass incarceration” meant deepened incarceration?  Which people would have gone to prison anyway but are spending more time incarcerated, either serving longer sentences or cycling through the system over and over again?  Again, there’s a moral version of the question: How long should people be in prison for?

Both of those questions are important, but they’re distinct topics, at right angles to each other analytically and morally: “should drug offenders go to prison at all?” is pretty different from “how long should convicted murderers serve in prison?”.  The next time you read an article about incarceration in the popular press or on social media, though, try to see if it’s even aware of the distinction. (For example, “reducing the prison population” is a pretty meaningless phrase  —  does it mean having fewer people go to prison or having people go to prison for less time?  One reason you don’t understand mass incarceration: the phrase “the prison population”.)

It’d be hard enough to understand how those two questions interact if we knew how to answer both of them, but no one knows how to answer either one.  There’s been a lot of impressive, interesting work trying to answer who goes to prison for how long (John Pfaff has been a big influence on this piece) and even the best of it is hampered by limited or unreliable data and difficult inferences, while obviously there isn’t much consensus on who should....

Quick: How many people really were sent to state or federal prison in the United States since 1978?  Don’t be surprised if you don’t know, since as far as I can tell no one else does either.

If you care about incarceration, then that should trouble you. This is, after all, the set of human beings that we’re talking about when we talk about mass incarceration. If we really understood mass incarceration then we would know a great deal about them.  We would know how many were African-American or white, how many served one, two, or ten terms in total, how many had different kinds of criminal histories prior to incarceration, how many only went to prison on drug offenses, how many went to prison on drug offenses then went back on violent offenses, and so on (and how all of those things changed over time and between different states and places).

But we don’t know any of that.  We don’t even know how to count them.  And if we don’t know how to count how many people have been to prison, then we don’t really know how mass incarceration affected real human beings....

We have some idea of how many prison terms there have been. The Bureau of Justice Statistics (BJS) lists about 12.7 million “new court commitments” to state and federal prison since 1978 in their National Prisoner Statistics (NPS) data, which is my main source here. Of course, that doesn’t mean that 12.7 million different people were sent to prison between 1978 and 2014, since some people had multiple prison terms....

Let’s say I’m right that around 7.5 million people were sent to state and federal prison since 1978.  Here’s another question that should be simple: How many of them wouldn’t have gone to prison without “mass incarceration” policies  — and what does that mean, anyway?  It’s clear that new prison terms did increase after 1978, so presumably a lot fewer people would have gone to prison without whatever it was that changed, but how many fewer people?  More like two million or more like six million?

Nobody knows, but we can make up some numbers, and maybe that’s a start.  For example we can consider a somewhat arbitrary hypothetical: What if new prison terms (new court commitments) had stayed constant per capita since 1978, when the rate was 57 in 100,000?  Under that hypothetical, there would have been about 5.6 million new prison terms since 1978, not 12.7 million.  I’ve illustrated this in the [reprinted] chart, which has the incarceration rate since 1978 in black, the rate of new prison terms in red, and the hypothetical of constant new terms per capita in blue.

December 18, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, December 17, 2015

"Leaders With Criminal Histories Should Be Included in Reform Debate"

The title of this post is the headline of this notable new Huffington Post commentary authored by Rev. Vivian Nixon Become, who is Executive Director of the College and Community Fellowship and Co-Founder of the Education from the Inside Out Coalition. Here are excerpts:

When tech companies hold panels on diversity consisting entirely of white men, there is an outcry — and rightly so. And when Congressional hearings on women's reproductive rights are devoid of actual women, the public is similarly aghast.  The reason for this outrage is easy to understand.  The people whose lives, careers, and bodies are impacted by these systems should be allowed to speak from direct experience, and are best positioned to guide meaningful decision-making.

So, why is there no uproar when policy decisions on criminal justice don't consider the recommendations of formerly incarcerated people?  It's high time that those who have direct experience with mass incarceration get a seat at the table in policy conversations on reform.

As a country, we've finally come to terms with the impact of a 500 per cent increase in our prison population over the last 30 years.  There is a bipartisan dialogue about the best ways to tackle the failures of America's criminal justice system.  But when the nation's leading politicians and thinkers gather to address these issues, they rarely include the people who will be most impacted by policy shifts, and who bring a valuable perspective — those who have actually experienced the lifetime consequences of criminal conviction.

Many men and women with criminal history records are leaders actively working to create meaningful change, both behind the bars and once they re-enter society.  I know this firsthand — while I was incarcerated in a New York state correctional facility,  I spent time tutoring women in basic adult education and high school equivalency courses. Upon my release, I was eager to find a way to pursue higher education.  Through the College and Community Fellowship and the Education from the Inside Out Coalition, I've worked with countless individuals who've similarly turned their lives around and helped their peers to do the same.

Why aren't these men and women seen as experts in their own cause?  Sadly, society continues to ostracize the formerly incarcerated and devalue their experiences.  The "tough on crime" 1990s didn't just increase our prison populations; it also allowed us to dehumanize people in prison, or those who have a criminal record.  We assigned them terms like "felon," "con," and "inmate" and reduced them to their crimes — regardless of the length of their sentence and whether or not they were expected to re-enter society.

Demonizing incarcerated and formerly incarcerated individuals permitted us to leave them out of daily American life. Even worse — we excluded them from conversations about their own fates and continued to punish them with collateral consequences, long after they had served their time.  In America, every sentence is a life sentence....

[F]ormerly incarcerated leaders are mobilizing.  This December, 200 formerly incarcerated men and women from across the Northeast gathered in New York to discuss methods to end mass incarceration, after similar regional conferences held in the South and on the West Coast.  They spoke directly and honestly with representatives from the federal government about their personal experiences and stories.

These candid conversations with people who have lived through prison and become leaders in the reform movement are invaluable for shaping criminal justice reform.  The more the voices of people with criminal record histories are heard, the harder it will be to silence them — and the more likely we are to be outraged when they are excluded from conversations that impact their lives.  With more than 70 million members of our society living with criminal records, we can't afford to ignore their experiences.  Let's open up a seat at the table for these leaders.

December 17, 2015 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Justice Department urges SCOTUS to refuse to take up original suit about marijuana brought by neighbor states against Colorado

As discussed here by Rob Mikos over at my Marijuana Law, Policy & Reform blog, late yesterday the US Solicitor General filed an amicus brief in the Supreme Court concerning the suit brought by Nebraska and Oklahoma against Colorado seeking various kinds of legal relief in the wake of Colorado's legalization of recreational marijuana.  Rob provides this basic background and summary of the filing:

Per its practice, SCOTUS had requested the SG’s input. The brief can be found via this link.  (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.)  For earlier postings on this case, see here, here and here.

In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so.  Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.

Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.

As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.

I am hopeful I will have time in the coming days to closely analyze this SG amicus brief and to post some additional commentary at the Marijuana Law, Policy & Reform blog or here.  In the meantime, here is how the Discussion section of the SG's brief gets started:

The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction.  Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

December 17, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?"

The title of this post is the title of this notable, lengthy commentary by Steve Vladeck over at PrawfsBlawg, which gets started this way:

I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split — given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016.  And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications — perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).

Or not.

In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two.  As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock — and to not support efforts to have the Supreme Court so hold before next June's deadline. 

A few prior related posts:

December 17, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed

As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform.  But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by  Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."

The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.  

In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases.  Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts.  Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes. 

This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures."  Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.

December 17, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, December 16, 2015

Mixed outcomes for marijuana reform efforts in latest omnibus spending bill from Congress

Though there are a number of federal marijuana reform bills kicking around Congress, it seems very unlikely any of these bills will be moving forward anytime soon. In the meantime, though, marijuana reform issues and proposals keep coming up in debates over government spending bills. And, in the wee hours last night, Congress passed a big new spending bill that included (and failed to include) some notable marijuana reform provisions.

Representative Earl Blumenauer, a supporter of federal marijuana reforms, issued today this press release summarizing what appears and does not appear in the omnibus bill.  Here is part of the text of this release:

Representative Blumenauer is pleased to see the inclusion of the following provisions in the omnibus package:

  • The policy championed by Representatives Dana Rohrabacher (R-CA) and Sam Farr (D-CA) that prevents the Department of Justice from interfering in the ability of states to implement legal medical marijuana laws (Division B, Title V, Section 542)
  • Language that supports industrial hemp research allowed under Section 7606 of the 2014 Farm Bill (Division B, Title V, Section 543 and Division A, Title VII, Section 763)

Representative Blumenauer is disappointed, however, that the bill falls short by not including provisions that:

  • Make it easier for banks to do business with state-legal marijuana businesses
  • Allow Veterans Health Administration providers to recommend medical marijuana to their patients in accordance with state law, a provision he championed in the House

Representative Blumenauer is also disappointed to see the continuation of a rider that interferes with Washington, DC's ability to pass laws dealing with the sale of marijuana for adult use.

Cross-posted at Marijuana Law, Policy & Reform.

December 16, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Two notable new papers looking at life sentences from two notable perspectives

Via SSRN, I have recently noticed two new papers providing different perspectives on life sentences. Here are titles, links and the abstracts for both interesting pieces:

"Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the UK Human Rights Act Made?" by Andrew Dyer

Abstract:  A comparison between United Kingdom (UK) and Australian law concerning irreducible life sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. In a series of challenges to draconian state laws that remove any possibility of parole from ten notorious murderers, the Australian courts steadfastly refused to intervene. Without clear authority to consider such legislation’s effect on human rights, the judges were careful to avoid creating any perception that they were undemocratically overriding Parliament’s will. But while the UK approach to irreducible life sentences is more desirable than that prevailing in Australia – especially concerning child offenders – Vinter v United Kingdom and succeeding events demonstrate that even courts that have explicitly been empowered to resolve human rights controversies possess far from a complete freedom, or ability, to effect change in this emotive area.

 

"Some Facts About Life: The Law, Theory, and Practice of Life Sentences" by Melissa Hamilton

Abstract: A diverse band of politicians, justice officials, and academic commentators are lending their voices to the hot topic of correcting the United States’ status as the world’s leader in mass incarceration. There is limited focus, though, upon the special role that life sentences play in explaining the explosion in prison populations and the dramatic rise in costs that result from providing for the increased needs of aging lifers. This Article highlights various ways in which life sentences occupy unique legal and political statuses. For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk. It also situates life sentences within an international moral imperative that reserves life penalties, if permitted at all, for the most heinous offenders and, in any event, demands period review of all long-term prison sentences.

This article provides a novel perspective, too, by presenting an empirical study in order to further investigate the law and practice of life sentences. Utilizing federal datasets, descriptive statistics and a multiple regression analysis offer important insights. The study makes an original contribution to the literature by exploring the salience of certain facts and circumstances (including demographic, offense-related, and case processing variables) in accounting for life sentence outcomes in the federal system. While some of the attributes of life sentenced defendants are consistent with current expectations, others might be surprising. For example, as expected, sentencing guideline recommendations, the presence of mandatory minimums, and greater criminal history predicted life sentences. Results also supported the existence of a trial penalty. On the other hand, lifers in the federal system were not representative of the most violent offenders or worst recidivists. Life sentences were issued across a variety of violent and nonviolent crimes, and in recent years a substantial percentage presented with minimal criminal histories. Regional disparities in the use of life sentences were also indicated. In concluding, this Article reviews potential remedies to the overreliance upon life penalties in the American justice system.

December 16, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

DPIC releases year-end report highlighting death penalty use "declines sharply" in 2015

Yr2015sentences-fbThis press release from the Death Penalty Information Center, titled "Death Penalty Use in 2015 Declines Sharply: Fewest Executions, Fewest Death Sentences, and Fewest States Employing the Death Penalty in Decades," provides a summary of the DPIC's 2015 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:

The use of the death penalty in the U.S. declined by virtually every measure in 2015.  The 28 executions this year marked the lowest number since 1991, according to a report released today by the Death Penalty Information Center (DPIC).  As of December 15, fourteen states and the federal government have imposed 49 new death sentences this year, a 33% decline over last year’s total and the lowest number since the early 1970s when the death penalty was halted by the U.S. Supreme Court.

Only six states conducted executions this year, the fewest number of states in 27 years. Eighty-six percent of executions this year were concentrated in just three states: Texas (13), Missouri (6), and Georgia (5).  Executions in 2015 declined 20 percent from 2014, when there were 35.   This year was the first time in 24 years that the number of executions was below 30.

Death sentences have been steadily declining in the U.S. over the past 15 years. The country has now imposed fewer death sentences in the past ten years than in the decade just before the U.S. Supreme Court declared the death penalty unconstitutional in 1972. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC’s Executive Director and the author of the report....

Relatively few jurisdictions handed down death sentences in 2015. A single county — Riverside, California — imposed 16% of all death sentences in the U.S., and accounted for more death verdicts than any state, except for Florida. More than a quarter of the death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice barred in all but three states.  Texas, by contrast, imposed only two new death sentences in 2015.  Nearly two-thirds of all new death sentences this year came from the same two percent of U.S. counties that are responsible for more than half of all death-sentenced inmates nationwide.

Even as the use of the death penalty declined, its most dangerous flaw remained apparent.  Six death row prisoners were exonerated of all charges this year, one each in Alabama, Arizona, Florida, Georgia, Mississippi, and Texas. Since 1973, a total of 156 inmates have been exonerated and freed from death row.  The number of people on death row dropped below 3,000 for the first time since 1995, according to the latest survey by the NAACP Legal Defense Fund.

At least 70 death row prisoners with execution dates in 2015 received stays, reprieves, or commutations, 2.5 times the number who were executed.

I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.

December 16, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (13)

Tuesday, December 15, 2015

How many fundamental rights in the Bill of Rights can be uniquely regulated for adults under 21?

The answer to the question in the title of this post would seem to be "at least one" in light of an interesting ruling today by the Seventh Circuit in Horsley v. Trame, No. No. 14-2846 (7th Cir. Dec. 15, 2015) (available here). Here is the starting, ending and some in-between key passages from the panel decision:

Tempest Horsley’s application to possess an Illinois Firearm Owner’s Identification Card, commonly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does not impose a categorical ban on firearm possession for 18-to- 20-year-olds whose parents do not consent. Rather, when an applicant cannot obtain a parent or guardian signature, he or she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court....

Horsley ... maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms. We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat’l Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.... Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the FOID Card Act does not in fact ban persons under 21 from having firearms without parent or guardian consent. Having a parent or guardian signature may speed up the process, but it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available can appeal to the Director of the Illinois State Police [and any] denial is subject to judicial review....

The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother’s life. Id. at 74....

The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public safety is supported by studies and data regarding persons under 21 and violent and gun crimes....  Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state’s compelling interest in public safety....

We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest.  Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable.  The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership.  The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event.  If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment — the Director of State Police.  The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional.

December 15, 2015 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (5)

NY Times debates " What Age Should Young Criminals Be Tried as Adults?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the appropriate age for when an offender should (or should not be) brought into adult court for trial and sentencing. Here is the section's set up:

The governor of Connecticut has proposed raising the age juveniles can be tried as adults to 21 in attempts to keep more young people out of cycles of incarceration.  Michigan, one of few states that still charge 17-year-olds as adults, is also considering raising the age for eligibility of juvenile status to 18.  Is this a good idea?  What age is appropriate for young law-breakers to be tried as adults?

Here are the contributions, with links via the commentary titles:

December 15, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Examining the crimmigration connections between sentencing and deportation

An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law.  In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:

Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors.  And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result.  This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime.  Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability.  Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief.  As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.

Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history.  A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression.  In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions.  This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation.  To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability.  But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction. 

December 15, 2015 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, December 14, 2015

SCOTUS yet again summarily reverses circuit reversal of state death sentence

The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror.  Here is part of how the opinion starts and ends:

A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit.  During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed.  The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments.  That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....

The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire.  But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.

The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment.  Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).

Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:

The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

December 14, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Reviewing and reflecting on persistent problems with the federal clemency process

The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks.  But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.  Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.  “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

December 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Sunday, December 13, 2015

"The Effect of Prison Sentence Length on Recidivism: Evidence from Random Judicial Assignment"

The title of this post is the title of this notable new empirical paper authored by Michael Roach and Max Schanzenbach available via SSRN. Here is the abstract:

Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison.  On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called “specific deterrence,” through learning or the rehabilitative effect of prison.

We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington.  Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge’s proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories.  However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison’s rehabilitative role.

December 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Encouraging DUI alternative sentencing story from South Dakota

The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:

Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking.  After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....

South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].

The program offers those accused or convicted of an alcohol-related crime an alternative to jail.  The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.

It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws.  "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began.  The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.

An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years.  "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.

Experts say incentive grants are an effective way to encourage states.  "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.

South Dakota started the practice in 2005.  Participants come to a site each morning and evening to blow into an alcohol breath test.  Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles.  Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.

North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states.  And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.

December 13, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (3)

Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification.  Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.  The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense.  In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.  In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights.  We agree.  For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

December 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Saturday, December 12, 2015

"The Armed Career Criminal Act: Imprecise, Indeterminate, and Unconstitutional"

The title of this post is the title of this timely new piece authored by Michael Schearer and available via SSRN. Here is the abstract:

The Armed Career Criminal Act provides a mandatory minimum fifteen-year sentence enhancement for felons possessing a firearm who have previously been convicted three times of a “violent felony” or a “serious drug offense.” Despite this seemingly clear mandate, the statute has been embroiled in controversy for decades as judges struggle to determine what predicate crimes meet this standard.  The culmination of this battle resulted in the invalidation of the ACCA’s “residual clause” when the Supreme Court found that the clause violated due process in Johnson v. United States.  Nonetheless, the remaining provisions of the ACCA are still problematic.

For example, although burglary is a specifically enumerated offense that constitutes a violent felony, burglary convictions in some states have been held to be violent felonies while burglary convictions in other states have not. Likewise, offenses involving “the use, attempted use, or threatened use of physical force against the person of another” have mired the courts in similar difficulties in determining whether the particular offensive qualifies as violent felony.  Perhaps most troublesome, a finding of juvenile delinquency can be considered a criminal conviction that subjects an individual to ACCA enhancement in a subsequent adult proceeding, despite the fact that juveniles do not have the right to a jury trial. This paper argues that the ACCA is imprecise, indeterminate, and insusceptible of principled and predictable interpretation.  Absent a wholesale modification by Congress, the substantive provisions of the ACCA examined in this paper ought to be held by the courts to be unconstitutional because they deprive defendants of due process.

December 12, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (6)

Friday, December 11, 2015

SCOTUS grants cert on permissible practices for police roadside tests and for prisoner litigation

As reported in this SCOTUSblog posting by Lyle Denniston, the Supreme Court granted certiorari review on four matters this afternoon including a set of cases "that could have a nationwide effect on the roadside actions of police officers."  Here are the details:

[T]he Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.  The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.

The Court also granted review of three other cases ... [including one involving] a dispute over whether a prison inmate is excused from attempting administrative remedies for a grievance if the prisoner believed, wrongly, that he had already done so (Ross v. Blake).

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration.  It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving.   In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving.  The two cases involve either a blood or breath test.

Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision.  And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling.  The Supreme Court, at its private Conference on Friday, had thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.

December 11, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers

As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer."  Here is more:

“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.

“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.

The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”

As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.

December 11, 2015 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

"Mass Incarceration: The Whole Pie 2015"

Pie2015The title of this post is the title of this valuable new on-line report from the Prison Policy Initiative. Everyone interested in the details essentials of modern mass incarceration ought to check out the full report (and the larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 636,000 people released every year include the people getting out of local jails?  Frustrating questions like these abound because our systems of federal, state, local, and other types of confinement — and the data collectors that keep track of them — are so fragmented.  There is a lot of interesting and valuable research out there, but varying definitions and other incompatibilities make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.  And we go deeper to provide further detail on why people in the various systems of confinement are locked up.

While the numbers in each slice of this pie chart represent a snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and therefore the many more lives that are affected by the criminal justice system.  In addition to the 636,000 people released from prisons each year, over 11 million people cycle through local jails each year.  Jail churn is particularly high because at any given moment a majority of the people in local jails have not been convicted and are in jail because they are either too poor to afford bail and are being held pretrial, or because they have just been arrested and will make bail in the next few hours or days.  The remainder of the people in jail — almost 200,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.... 

Now, armed with the big picture of how many people are locked up in the United States in the various types of facilities and for what offenses, we have a better foundation for the long overdue conversation about criminal justice reform.  For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, and it demonstrates why the policymakers and advocates who see ending the War on Drugs as a politically acceptable first step towards ending mass incarceration must take great care that their actions both constitute actual progress for people with drug offenses and do not make further reforms more difficult.  Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward.

  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?

  • Do policymakers and the public have the focus to also confront the geographically and politically dispersed second largest slice of the pie: the 3,283 local jails? Given that the people behind bars in this country are disproportionately poor and shut out of the economy, does it make sense to lock up millions of people for a few days at a time for minor offenses? Will our leaders be brave enough to ask the public to support smarter investments in community-based drug treatment and job training? Or will they support the continued use of jails as mass incarceration’s front door?

December 10, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

The Sentencing Project spotlights major criminal justice reform stories of 2015

The Sentencing Project is an extraordinary public policy group that does some of the most effective and important criminal justice reform research and advocacy.  I received via e-mail this letter from The Sentencing Project about its latest publication and its impressive recent:

This year, we have seen an emerging national consensus for criminal justice reform.  At The Sentencing Project, we’ve been proud to have contributed to this shift, as we have for more than a quarter century. Our 2015 annual newsletter contains highlights of criminal justice reform activities this year, including:
  • A look at the major reform developments in Washington, including the bipartisan Sentencing Reform and Corrections Act, introduced in the Senate this fall
  • Successful reform efforts at the state level, including scaled back bans on public assistance for people with felony drug convictions in Alabama and Texas
We have had a wonderful year, and we look forward to continued success in the year ahead. 

December 10, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Shouldn't the Black Lives Matter movement focus a lot more on ensuring black voters are able to matter?

The question in the title of this post reflects my reaction to two stories I came across this morning.  First, as reported here, readers of The Crime Report in the site's "fifth annual survey of the most significant criminal justice news stories and developments ... [chose] the growing political profile of Black Lives Matter and related organizations as the major development of 2015."  Second, this new Intercept article reports that within "Florida’s black population, the rate of disenfranchisement is high, with nearly a quarter of African-Americans prohibited from voting."  This second piece is headlined "Thanks to Republicans, Nearly a Quarter of Florida's Black Citizens Can't Vote," and here is an excerpt:

Nationwide, nearly 6 million Americans are barred from voting due to felony convictions. Although most states restrict the voting rights of imprisoned felons, Iowa currently is the only one that joins Florida in imposing a lifelong disenfranchisement on ex-felons.  Until three weeks ago, Kentucky also had such a ban, but on the Tuesday before Thanksgiving the state’s outgoing Democratic governor issued an executive order restoring the voting rights of 140,000 nonviolent ex-felons in the state.  The incoming Republican governor has signaled that he may uphold the order.

Meanwhile, the scale of the problem in Florida appears to be growing. The 1.5 million figure dates from 2010; when Republican Gov. Rick Scott took office in 2011, he immediately rolled back a policy of his predecessor, Charlie Crist, who automatically restored the rights of many felony offenders who had completed their sentences.  Scott introduced new rules requiring that people convicted of nonviolent felonies wait five years before they can apply to have their civil rights restored; those convicted of violent and certain more serious felonies must wait seven years to apply.  Under Crist, tens of thousands of felons, on average, won back their right to vote each year. So far, Gov. Scott has restored the rights of just 1,866 ex-felons, while tens of thousands of former inmates are released each year, stripped of their voting rights. As the Scott administration has choked off the one existing channel for former felons seeking suffrage, anecdotal evidence suggests that wait times are getting longer for those petitioning the governor to restore their civil rights. ...

More than 50 years after Congress passed the Voting Rights Act of 1965, Florida is still a place where in a typical public setting — a grocery store or a city block — a sizable portion of the citizens you walk among are likely to be quietly enduring the state’s lifelong disenfranchisement. In neighborhoods like heavily black Parramore, an even larger number of residents will be unable to vote. And Walker says that in his congregation, those who can vote are outnumbered by those who cannot.

“We’ve had older clients call us and say I want to be able to vote again before I die,” said Mathew Higbee, the founding partner of Higbee & Associates, a law firm that helps ex-felons restore their civil rights. “And we say, ‘Right now it’s going to be a six- to 10-year wait before they’ll even look at it,’ and the person says: ‘I’m not sure I’m going to live that long so I’m not even going to try.’”

The Scott administration has asserted that the governor uses the right to vote as an incentive to encourage former offenders to stay out of trouble. “Gov. Scott feels that convicted felons need to have an opportunity to show they can be law-abiding members of society before those rights are restored,” a spokesperson said during the 2012 election season. Yet ex-felons who have stayed clear of the law for more than a decade told me that their petitions to Florida’s clemency board have gone unanswered or have become stalled in a bewildering bureaucracy plagued with a backlog of nearly 11,000 pending applications for civil rights restoration. So far this year, the state has approved only 315 applications. The former felons I spoke with hold little faith in the clemency process. And, perhaps more than anything else, they express a feeling of having been being forgotten by virtually every element of political life in America. (Gov. Scott’s office did not respond to a list of emailed questions.)

I view the 2008 and 2012 election results as dramatic proof that minority populations garner significant political power and can have maximum political and social impact when they turn out in large numbers to vote.  As the title of this post suggests, I think the BLM movemen could and would have the most long-term political and social impact if it were to aggressively challenge felon disenfranchisement laws and other formal and informal barriers to people of color voting in very large numbers in every election.

December 10, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13)

Wednesday, December 9, 2015

Jared Fogle's partner in sex crimes scheduled for sentencing

This Indianapolis Star article, headlined "Russell Taylor turns on Jared Fogle as he awaits sentencing," reports at length on the sad sorted backstory for this week's federal sentencing of the crime partner of a high-profile federal sex offender. Here is how the extended article gets started:

Russell Taylor and Jared Fogle had much different backgrounds, but their lives became intertwined to the point that people started calling them "an old married couple." Fogle was sent to prison last month for more than 15 years on child pornography charges, and Taylor will stand before the same federal judge Thursday to learn his fate.

While degrees of depravity for child pornographers might be hard to accept, the man leading the prosecution used his toughest designation on Taylor. "In every respect, he's a monster," Assistant U.S. Attorney Steven DeBrota said at Fogle's sentencing. But, DeBrota added, Taylor is a monster Fogle helped create.

The sentencing in U.S. District Court for the Southern District of Indiana marks the end of a shocking Hoosier child pornography case that attracted international attention because of Fogle, the former Subway sandwich pitchman.

Taylor, who headed Fogle’s charitable foundation from 2009 until his arrest in April, has agreed to plead guilty to 12 counts of producing child pornography and one of distributing. The production charges involve images of a dozen children between the ages of 9 and 16, including family members, that Taylor secretly recorded in his home and then shared with Fogle.

As part of a plea deal, prosecutors are asking for a sentence of 35 years, while Taylor’s attorneys want a prison term of 15 to 23 years. Taylor has been in jail since his arrest. The length of Taylor’s sentence will be decided by Judge Tanya Walton Pratt, who is not bound by terms of the plea agreement.

Under federal law, Taylor faces a minimum sentence of 15 years. The maximum is 380 years if Pratt issues the longest sentence on all counts — 30 years for each count of production, 20 years on the distribution count — and orders them to be served consecutively, not concurrently.

The sentencing will close the door on the criminal case. Yet questions will linger, including why nobody, especially Taylor's wife, knew or intervened until an Indianapolis woman alerted police in September 2014 to Taylor's interest in child pornography and bestiality.

The facade of Fogle and Taylor promoting healthy lifestyles and helping young people came crashing down months later, revealing two married fathers who sought out strippers and prostitutes, drank heavily and dove into the seamy world of child pornography with virtually no level of depravity too taboo. They were, literally, partners in crime.

The prospect of growing old in federal prison, however, brought an acrimonious end to what Taylor described as a “12-year run” in which he and Fogle lived the high life, traveling the world and meeting celebrities — while carrying on debauched double lives. Since their arrests earlier this year, Taylor and Fogle have turned on each other, admitting their own guilt but attempting to minimize their roles and cast the other as more reprehensible.

The rise and fall of the men is detailed in hundreds of pages of court records from the two criminal cases. How much of their stories are true is hard to tell. Both men were desperately maneuvering to avoid long prison sentences when they submitted their version of the facts to the judge.

December 9, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (0)

"Decriminalizing Drugs: When Treatment Replaces Prison"

The title of this post is the headline of this lengthy New York Times commentary piece authored by Tina Rosenberg, which gives extended attention to Portugal's experience with drug decriminalization. Here are extended excerpts:

If one of my children were a drug addict, what would I want for him?

I would want what any parent would: for his addiction to be treated as a health problem, not a criminal matter, and for him to have every kind of help possible to get him off drugs. Until that happened, I would want him to be able to manage his addiction and live a normal life by taking methadone or another substitute opioid. And until that happened, for him to stay as safe as possible from overdosing, developing H.I.V., or going to prison, which would irrevocably alter the course of his post-addiction life.

What’s significant about the question is not how I would answer, but the probability that I might be asked it at all. Because I am white and middle class, society would view my addict child as a sick person who needed help. If I were African-American and poor, he would most likely be seen as a criminal to be locked up. And no one would be interested in what I wanted, or what was best for him....

New England and Appalachia have been hit particularly hard by the heroin and opioid epidemic in the United States, but all across the country, policies are emerging that treat drugs as a health problem instead of a crime. Conservative politicians who once called needle exchange the devil’s work are now establishing them in their cities. Police officers now carry naloxone, a drug that instantly reverses overdoses, and are saving lives on a daily basis. Cities all over the country are copying Seattle’s Law Enforcement Assisted Diversion program, in which police officers put low-level drug offenders into treatment and social services instead of jail. It is hard to imagine Congress decriminalizing drugs, but easy to imagine that soon, any debate at the national level may be irrelevant.

Where will that take us? We can look at what happened in various countries that have decriminalized drugs. Portugal has gone the furthest. It decriminalized the personal use of all drugs (dealing and trafficking are still crimes and use remains illegal) in 2001. Its program is the most comprehensive and the best-studied. At the turn of the century, Portugal was drowning in heroin and had the worst H.I.V. rates among injecting drug users in Europe. The country had responded with harsh drug laws, which had not helped. Indeed, the laws drove many users underground.

On July 1, 2001, Portugal reversed course, decriminalizing possession of less than 10 days’ supply of any drug. That’s not legalization. But the penalties have been made administrative, not criminal. When the police catch people using or possessing drugs, the drug is seized. Within 72 hours, the user meets with what is called a dissuasion commission. The commission has social workers and psychologists who use the police report and assess the drug user and his needs. Then the user comes before a dissuasion panel; Lisbon’s, for example, has a sociologist, a lawyer and a psychologist.

The panel can simply warn a user, or send him to appropriate social or health services — including drug treatment if the user is an addict.  Nuno Capaz, the sociologist on Lisbon’s panel, said that users were punished only if they refused to go or they were repeat offenders.  The punishment can be a fine, community service, or supervision by a local agency.

Decriminalization doesn’t work alone. “You need to invest heavily in public health response,” said Niamh Eastwood, executive director of Release, a British organization. “The success of Portugal is not just a model of law reform, but also significant harm reduction and a public health response. The whole package should be deployed.” “Decriminalization is easy,” said Capaz. “You write down that if people are caught doing illegal things, the sanctions are administrative and not criminal. The hard part is making treatment available. It works for us because it works with our health care system — drug users who want treatment can get it for free.”

As it changed its laws, Portugal set up prevention campaigns, harm-reduction measures such as needle exchange that make drug use safer, and treatment services. Although drug-free treatment is available, Portugal relies heavily on methadone and other opioid substitution therapy to gradually wean users away from drugs. Hyper-controversial when it first started, Portugal’s program is now widely accepted.  When global recession hit in 2008, the country’s health, housing and employment programs were severely cut. That may have affected its drug policies, but when drug programs themselves were cut — mostly outside of Lisbon — the losses were less than in other programs, Capaz said. Their success largely protected them, and politicians knew that cutting treatment or prevention services would only cost more later.

With those caveats, here’s what’s happened in Portugal:

Overdose deaths — down by 72 percent....

Spread of H.I.V. — down by 94 percent....

Drug crime and imprisonment — down, by definition....

Drug use — mixed....

Portugal is far from alone. At least 25 countries have decriminalized some drugs, mostly cannabis. A few countries in Europe did so in the 1970s — or had never criminalized drugs at all. But in the last 10 years more have joined in Europe and Latin America, and other countries that have not decriminalized have nevertheless softened their policies to emphasize public health and harm reduction.... The tragic exception to the trend is Russia, where even methadone is still illegal. Russia’s cruelty towards drug users is the main reason the country’s epidemic incidence of H.I.V. has doubled in the last five years....

The most surprising endorsement of decriminalization came last month from the United Nations Office on Drugs and Crime, which had always taken a hard-line approach to drugs. At a harm-reduction conference in Malaysia, the agency released a paper that began: “This document clarifies the position of UNODC to inform country responses to promote a health and human rights based approach to drug policy.” It lays out the case for decriminalization and harm reduction. (Branson put the paper on his website.)

As soon as the paper came out, the agency drew back. The author was supposed to speak at the conference, but didn’t. A spokesperson for the agency said the paper was “neither a final nor a formal document….and cannot be read as a statement of UNODC policy.” It’s not clear why the agency retreated, but in the past, the United States has pressured international organizations to retract documents that propose a softer line.

Other countries that have decriminalized have largely echoed Portugal’s results, seeing big improvements in avoiding deaths, disease and imprisonment, but very little effect on usage. Two recent British studies examined the effects of drug policy on drug use in different countries. The nongovernmental organization Release looked at decriminalization’s effects in 21 countries, and found no statistically significant increase in levels of drug consumption. Britain’s Home Office published a study last year of drug policies and their effects in countries around the world. “We did not in our fact-finding observe any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country,” the report concluded.

For all its advantages, decriminalization fails to alleviate many harms that come from drugs — its lack of impact on usage is one example. “Decriminalization doesn’t deal with the supply-side issues,” said Eastwood. “It doesn’t really undermine all the negative consequences from the illicit market. It doesn’t reduce violence. It doesn’t affect drug purity.” Indeed, the inconsistent purity of heroin is a big contributor to overdose deaths. In short, decriminalization is not a good solution to the drug problem. It’s just a better solution than the one we’ve got. 

December 9, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Georgia struggles a bit while completing final scheduled US execution of 2015

As reported in this local article, headlined "Georgia executes Brian Keith Terrell after struggling to find vein," the Peach State had a not-so-peachy time completing an execution yesterday. Here are the details:

Brian Keith Terrell was put to death at 12:52 a.m. Wednesday for the 1992 murder of 70-year-old John Watson of Covington.

The U.S. Supreme Court denied Terrell’s final appeal shortly after 11 p.m. Tuesday, clearing the way for the death to proceed. But it took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man’s arms. She eventually had to put one into Terrell’s right hand.

Terrell winced several times, apparently in pain. After all the witnesses were seated and a prayer was offered, Terrell raised his head and mouthed, “Didn’t do it,” to Newton County Sheriff Ezell Brown, who was sitting at the center of the front row.

Terrell’s execution marks the fifth lethal injection the state has carried out this year, more than any other year since the state first used lethal injection in 2001....

In 1992, Terrell stole John Watson’s checkbook and withdrew a total of $8,700 from the victim’s bank account. Watson, a friend of Terrell’s mother, Barbara, told her he would not press charges against her son if a substantial amount of the stolen money was returned within two days. Instead, Terrell ambushed Watson as he left his Covington house for a dialysis appointment.

Terrell’s lawyers had pleaded for clemency because of their concerns about the pharmacist who made the lethal injection drug. According to court filings, that pharmacist has a 50 percent error rate.

The pharmacist — whose identity is secret under state law — compounded the drugs used in six previous executions, including the pentobarbital that turned cloudy in early March, forcing the state to postpone scheduled executions. The Department of Corrections said it has addressed the problem. Kelly Gissendaner, who was the lone woman on Georgia’s death row, and another man have since been put to death. Terrell’s lawyers argued in court filings that at the very least Georgia should use another pharmacist to make the drug.

December 9, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

Tuesday, December 8, 2015

"The Path to Exoneration"

The title of this post is the title of this notable new paper available via SSRN authored by Jon Gould and Richard Leo. Here is the abstract:

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence.  The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings.  First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence.  Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent.  Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations.  Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.

December 8, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Kentucky gov issues hundreds of pardons and a few commutations on way out of office

As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence."  Here is more:

Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”

Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.

Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...

Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”

Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.

“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”

December 8, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Why Has The Death Penalty Grown Increasingly Rare?"

The title of this post is the headline of this extended NPR piece reported by Nina Totenberg. (She also has this companion shorter piece headlined "As Supreme Court Upholds Death Penalty, Number Of Executions Plummets.") Here is how the big segment gets started: 

The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia.  But capital punishment has gown rare in America, to the point of near extinction.

Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.

It's an ironic statistic.  When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning."  Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.

Few could have imagined the trajectory the death penalty would follow in the years after.  The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000.  With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.

While the death penalty remains the law in 31 states, that figure is misleading.  In many of the 31, capital punishment has largely fallen into disuse.  In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.

December 8, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, December 7, 2015

Notable new BJS data on veterans in state and federal prisons and local jails

As reported in this official press release, titled "Fewer Veterans In Prison And Jail In 2011-12 Than 2004," the Bureau of Justice Statistics released a new report on incarcerated vets. Here are excerpts from the first page of this detailed, data-heavy report:

In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities. This represented a decrease from the estimated 206,500 incarcerated veterans (9% of the total incarcerated population) in 2004, and was consistent with the decline in the number of veterans in the U.S. general population. While the number of veterans in prison and jail increased along with growth in the overall number of persons incarcerated between 1980 and 2008, the proportion of incarcerated veterans has declined, down from an estimated 24% of all persons incarcerated in state prison and jail in 1978 (federal inmates were not surveyed in 1978).

In 1978, 19% of U.S. adult residents, 24% of prisoners, and 25% of jail inmates were military veterans. By 2011–12, veterans accounted for 9% of the general population, 8% of state and federal prisoners, and 7% of jail inmates....

The total incarceration rate in 2011–12 for veterans (855 per 100,000 veterans in the United States) was lower than the rate for nonveterans (968 per 100,000 U.S. residents). „

Non-Hispanic black and Hispanic inmates made up a significantly smaller proportion of incarcerated veterans (38% in prison and 44% in jail), compared to incarcerated non-Hispanic black and Hispanic nonveterans (63% in prison and 59% in jail). „

A greater percentage of veterans (64%) than nonveterans (48%) were sentenced for violent offenses....

„ More than three-quarters (77%) of incarcerated veterans received military discharges that were honorable or under honorable conditions.... „

„ A quarter of veterans in prison (25%) and less than a third of veterans in jail (31%) reported that they had been in combat while in the military. „

About half of all veterans in prison (48%) and jail (55%) had been told by a mental health professional they had a mental disorder. „ Incarcerated veterans who saw combat (60% in prison and 67% in jail) were more likely than noncombat veterans (44% in prison and 49% in jail) to have been told they had a mental disorder.

December 7, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Justice Thomas (with Justice Scalia) dissents from cert denial in Second Amendment challenge to local assault weapon ban

After SCOTUS released on Friday its most list of certiorari grants (including a sentencing case as noted here), the highlight of today's long order list of denials of certiorari comes in the form of this dissent authored by Justice Thomas and joined by Justice Scalia. The dissent from the denial of certiorari in Friedman v. City of Highland Park, Illinois, begins and ends this way (with a few cites removed):

“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion).  And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below — have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes.  See 784 F. 3d 406, 410–412 (2015).  Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case....

[The Seventh Circuit's] analysis misreads Heller.  The question under Heller is not whether citizens have adequate alternatives available for self-defense.  Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist.  554 U. S., at 627–629.  And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624–625.  The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes.  Roughly five million Americans own AR-style semiautomatic rifles.  See 784 F.3d, at 415, n.3.  The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting.  See ibid.  Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits.  See 784 F. 3d, at 411–412. The court conceded that handguns — not “assault weapons” — “are responsible for the vast majority of gun violence in the United States.”  Id., at 409.  Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.”  Id., at 412.  Heller, however, forbids subjecting the Second Amendment’s “core protection . . . to a freestanding ‘interest-balancing’ approach.”  Heller, supra, at 634.  This case illustrates why.  If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.

The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.... There is no basis for a different result when our Second Amendment precedents are at stake.  I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

As I have noted in prior posts, the Second Amendment has been relegated to status as a "second-class right" primarily due to dicta in Heller suggesting that any person who ever commits a crime can and does forever forfeit the "personal right to keep and bear arms for lawful purposes."  Lower courts since Heller have consistently upheld federal prosecution and severe sentencing of persons who long ago committed nonviolent crimes simply for much later seeking to "keep and bear arms for lawful purposes."  Not a single Justice has said a peep about this extreme restriction on Second Amendment rights even though, to my knowledge, few have ever seriously argued that any other right enumerated in the Bill of Rights is or should be subject to permanent forfeiture forever once a person is adjudicated guilty of a crime.

The significant and enduring pattern of courts upholding laws criminalizing persons with criminal records for gun possession, especially in a nation in which it seems more than a 25% of adults have some kind of criminal record, is what I think truly relegates the Second Amendment to a second-class right.  But, for obviously reasons, I am not expecting any SCOTUS Justices to note anytime soon that a mere local ban on possessing a certain type of firearm is far less consequential than the current federal ban on tens of millions of Americans ever being able to possess any firearm even for self-defense in their home.

December 7, 2015 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13)

Extended account of much Obama executive ado so far still amounting to nearly nothing

Images (6)This past weekend, the Washington Post had this extended account of how and how long Prez Obama and former Attorney General Eric Holder have been talking about working toward significant criminal justice reform.  I recommend the entire piece, and here are some extended excerpts:

Thee summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder... But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs close up as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor.  The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a world view,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act....

Laying out a three-part plan he called “Smart on Crime,” Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.  He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early....

Nearly 2-1/2 years later, the administration’s major criminal justice overhaul has yielded mixed results.  Obama and Holder helped launch a national conversation about mass incarceration.  Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing.  The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons.  Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has only granted clemency to 89 inmates of the thousands of federal drug offenders who have applied.  The president is expected to grant clemency to about another 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative.  Other Justice officials say the number is closer to 1,000 or 2,000. Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.  “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress.  If the president wants to correct past injustices, he can.”...

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election....  “Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard.  “It’s gutsy.  It’s risky.  But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations.  Holder and Obama were concerned about the backlash.  Could they pull off this huge reversal of drug policy and sentencing?  Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s own department.  In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders.  The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

Regular readers know that I have been a persistent supporter of the Obama Administration's efforts to refocus criminal justice energies away from the war on drugs, and both Prez Obama and former AG Holder merit credit for helping to change the modern criminal justice reform conversation in the US. But I find quite frustrating and aggravating to hear that Obama and Holder were interested in doing something "big" and "gutsy" concerning the drug war given how little they have done so far that would merit the label big or gutsy.

Big and gutsy would involve granting thousands of commutations, not just dozens; big and gutsy would involve pushing hard on Congress and the Sentencng Commission to move away from drug quantities as the basis for long prison sentences; big and gutsy would involve advocating for bringing back parole eligibility for at least nonviolent drug offenders; big and gutsy would involve creating executive task forces with mandates to lower the federal prison population by at least 25% and to study how best to reform federal marijuana prohibtion; big and gutsy would involve tasking past and present GOP Govs who have championed state sentencing reform to propose possible reforms for the federal system.

Especially because Prez Obama still has a final year to make good on his desire to do something "big" and "gutsy," I am disinclined to give up hope that he can still bring more significant change to the most troublesome part of the nation's criminal justice systems.  In addition, when thinking of Prez Obama's likely sentencing legacy, he surely merits credit for appointing SCOTUS Justices and USSC Commissioners that have been pushing forward significant jurisprudential and doctrinal changes.  But as of this writing, the size, scope and operation of the federal criminal justice system in late Fall 2015 is practically speaking not very much different at all from what the system looked like in late Fall 2008.  Prez Obama has a lot of work ahead if he really wants things to truly be different in this space when he leaves the Oval Office.

December 7, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

"Are debtors' prisons returning?"

The title of this post is the headline of this recent lengthy CNN commentary authored by Van Jones and Jessica Jackson. Here are excerpts:

Debtors' prison is supposed to be illegal in the United States. But in too many American cities, it has made a shocking return.  This [past] week, a bipartisan group of leaders, and a few A-list celebrities, gathered at the White House to do something about it.

The problem: Faced with ballooning costs of America's massive incarceration industry, local jurisdictions have started billing people for time they spend behind bars.  They are also charging them for electronic supervision services. Not to mention DNA collection, juries and constitutionally mandated public defenders.

The trouble here is obvious: Recently incarcerated people often do not have jobs.  Therefore, they cannot possibly keep up with an increasingly aggressive list of fees and fines.

So believe it or not: Cities are throwing them BACK into jail -- for not being able to pay!  From Detroit to Dallas, America's criminal justice system is trapping poor people in a perpetual cycle of prisons and poverty....

On top of the stated fees and fines, many jurisdictions are adopting practices employed by shady payday lenders, not public safety agencies.  For example, Washington state charges a 12% interest rate on all its criminal debt.  Florida adds a 40% fee that goes into the pockets of a private collections agency.  And in Arizona, an 83% surcharge turns a $500 fee into a $915 bill.  A portion of those proceeds go to finance electoral campaigns, creating a strong incentive to preserve the status quo.

One study revealed that most people with a felony conviction can expect to be saddled with an average $11,000 in debt.  In total, about 10 million Americans collectively owe more than $50 billion in outstanding fines and fees. Repaying this debt would be challenging for the average American family, half of whom would have trouble finding $400 on short notice.  But for those already struggling to get on their feet after prison, the debt from fees and fines often carry carries with it an air of impossibility.

The current system has dire consequences for millions of Americans that can be permanently debilitating and perpetuates a cycle of poverty and incarceration.  Failure to pay fines can result in lost income, depressed credit ratings, housing instability, suspended drivers' licenses, arrest warrants, loss of Social Security benefits or further incarceration.  These consequences can permanently affect an individual's life and reduce the ability ever to get his or her life back on track.

The system is not supposed to work this way.  A Supreme Court ruling in 1983 prohibited putting people in prison for failure to pay their fines and fees without an indigency hearing.  And yet at least 15 states have found ways to ignore this mandate.  They have made this a standard practice....

The Sunlight Foundation is supporting the collection of data so we can understand the scope of the problem and how we can better address the issue.  The Laura and John Arnold Foundation is funding a comprehensive research and litigation-based approach to reform.  And #cut50 is dedicated to highlighting this injustice and amplifying leadership from around the country.

Together, we can roll back these policies that ultimately have little to do with public safety.  Our challenge strikes at the heart of our criminal justice system: Are we a nation of second chances, or will we sit by and watch a perpetual punishment machine run wild?  Let us ensure our elected representatives and government agencies live up to the highest values of our society.

This ABC News column authored by Lz Ganderson, headlined "To Be Poor, Black and Jailed," discusses similar issues and concerns.

December 7, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, December 6, 2015

Supreme Court takes up Montana case to resolve applicability of Sixth Amendment speedy trial right to sentencing

The major matter among the cases that the Supreme Court decided to take up on Friday concerns the authority of the Puerto Rican government to deal with its debt crisis.  But as this post from Lyle Denniston at SCOTUSblog notes, the undercard cert grants are still noteworthy:

The Court granted review in three other cases on Friday, involving: the application of the constitutional right to a speedy trial to a follow-up sentencing proceeding (Betterman v. Montana); a definition of when a government contractor has filed false reimbursement claims under the False Claims Act (questions 2 and 3 in Universal Health Services v. United States ex rel. Escobar); and a claim for attorney’s fees for an employer when the Equal Employment Opportunity Commission does not carry out its assigned duties before a lawsuit is filed (CRST Van Expedited v. EEOC). Those cases, too, are likely to be argued in March.

The cert petition in Betterman is available at this link, and here is how it presents the question:

Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.

This question has divided lower courts, but I am not so sure having it answered either way will really impact sentencing practices much. Defendants can, and regularly do, waive and forfeit Sixth Amendment speedy trial rights so having such a right apply at sentencing may not practically lead to much more than just some more formal waiver practices. Conversely, defendants surely have some residual Fifth Amendment Due Process right not to suffer too much prejudice from excessive delays before sentencing, so defendant already have and will continue to have some procedural protections in this arena even without the Sixth Amendment getting involved.

That all said, it is always exciting and interesting when SCOTUS takes up a constitutional sentencing issue that has split both state and federal courts. And there could be some "sleeper" elements emerging in this case through briefing and argument that could make it a bigger deal. And, if nothing else, the case has the benefit of a cool party name that will keep me humming one of my (many) favorite Pearl Jam songs.

December 6, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?

Justice-refThe question in the title of this post is prompted by this recent Washington Post report, headlined "Obama convenes meeting on criminal justice reform to buoy bipartisanship," discussing a meeting Prez Obama convened with congressional leaders to talk about how to turn reform bills into new sentencing laws. Here the details:

President Obama convened a meeting of more than a dozen congressional Republicans and Democrats Thursday, in an effort to bolster a fragile bipartisan coalition working to reform the criminal justice system.

The House and Senate have been working to craft legislation to reduce mandatory minimum sentences for drug offenders, as well as to revamp aspects of federal incarceration. The Senate Judiciary Committee passed a comprehensive bill on a bipartisan 15-5 vote in October; the House Judiciary Committee has passed five separate measures by voice vote in recent weeks.

But there are a few major differences between the two chambers’ approaches. Most significantly, one of the House bills — the Criminal Code Improvement Act — would require prosecutors in cases as wide-ranging as food tainting and corporate pollution to prove that defendants “knew, or had reason to believe, the conduct was unlawful,” otherwise known as “mens rea.”

That measure has angered many Democrats, who argue that it could block criminal prosecution of some corporate entities — including those owned by Koch Industries, which has helped mobilize conservative support for the overall reform effort. Obama specifically asked lawmakers to remove the provision, according to individuals familiar with the meeting, though House Republicans argued that it was a critical component for conservatives.

“We believe that invites a lot of controversy and delay into our agreement, and the House feels just the opposite,” said Senate Minority Whip Richard J. Durbin (D-Ill.), who attended the White House meeting and co-authored the Senate criminal justice bill.

Sen. John Cornyn (R-Tex.), another co-author of the bill, said that while “nothing was decided” in the more than hour-and-a-half session, he was “very optimistic” after participating in it. “I think it was all a very positive, bipartisan, bicameral, executive, legislative meeting,” Cornyn said, adding that although “there was not consensus” on that issue, there might be a way to work it out in a conference between the two chambers. “But I think part of the message was, ‘Let’s take the things where there is consensus, get that done.’ ”

A spokeswoman for House Judiciary Committee Chairman Bob Goodlatte (R-Va.) declined to comment on the meeting. She noted that the House panel has passed bills on issues including modifying sentencing guidelines and eliminating statutes in the U.S. Code that subject violators to criminal penalties for trivial conduct. The committee will take up measures on prisons, civil asset forfeiture, and criminal procedures and policing in the coming weeks, she added.

Durbin said “we have a good chance” of passing legislation in early 2016, so lawmakers can work out their differences “and send it to the president before midpoint of next year.”

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who helped craft the Senate bill and also met with the president, said the meeting was less about “the path forward” than how to get the two competing proposals brought up for floor votes in the House and Senate.

Obama also pressed for specific numbers on how many individuals would benefit overall from the two proposals, people familiar with the meeting said, because the proposals introduce new sentences even as they reduce some mandatory minimums.

Senator Durbin's comments reinforce my understand that there is a good chance that the full House and Senate will likely vote in January or February on the various reform bills that have already passed the Judiciary Committees. Such votes would pave the way for harmonizing efforts on the bills and perhaps enactment sometime in Spring 2016. I think the commnts coming after this meanign from not only Senator Durbin but also Senator Cronyn lead me to have continued (tempered) optimism that this will get done in some form before Prez Obama leaves the Oval Office.

That all said, the dispute over menas rea reform could throw a wrench into this process, as could various other political developments. Especially if the legislative process drags into the summer, I think whomever emerges as a GOP leader through the primary season could end up having an impact on the sentencing reform debate. In addition, as both the title and contents of this post suggests, Prez Obama also is a critical and complicated figure in all this. Cajoling Congress effectively could help keep the legislative process, but too much advocacy or criticism on sentencing issues coming from the White House could upset an already delicate political balance in this arena.

December 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity

I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.

So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

December 6, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)