Monday, August 3, 2015
Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP
A Fourth Circuit panel on Friday issued a very intricate and thoughtful set of opinions in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here). The start of the majority opinion provides this effective overview of the issues in Surratt:
In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment. We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.
Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion. Surratt’s request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received. Surratt maintained that this difference entitled him to be resentenced. But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions. See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6.
In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief. As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) -- also called the “savings clause” -- applies. The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.
Surratt now appeals from the judgment of the district court. We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.
The end of the dissenting opinion in Surratt provides this alternative perspective on the case and its disposition by the majority:
I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ. I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution. Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison -- against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custodiet ipsos custodies? Who will guard the guards themselves?
It is within our power to do more than simply leave Surratt to the mercy of the executive branch. To hope for the right outcome in another’s hands perhaps is noble. But only when we actually do the right thing can we be just. I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison. I must dissent.
Sunday, August 2, 2015
Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:
Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.
This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.
The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.
Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.
Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.
While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....
Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.
SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.
Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.
Prior related posts:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
Prez candidate O'Malley joins chorus of leaders advocating criminal justice reform
This USA Today article reports on the latest presidential candidate's latest discussion of the need for criminal justice reform. The piece is headlined "O'Malley pledges criminal justice reform," and here are the details:
Democratic presidential candidate Martin O’Malley stressed his urban affairs experience as Baltimore mayor as he pledged Friday to improve race relations and the criminal justice system. The nation has moved toward racial justice, “but we are not there yet,” the former Maryland governor told a National Urban League presidential forum, citing recent killings and abuse involving police officers. “In our country, there is no such thing as a spare American,” O’Malley said.
While other candidates have talked about criminal justice reform, O’Malley said, “I have actually done it.” In outlining a criminal justice agenda, O’Malley pledged to change sentencing laws so that punishments fit crimes and to end racial disparities in sentencing, including crimes involving crack and powder cocaine. O’Malley, who is lagging far behind in Democratic polls, also called for an end to the death penalty.
Saturday, August 1, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
Latest reform news means still more waiting for those eager for federal sentencing reform
This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:
Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.
The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....
Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.
But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....
The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.
And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.
Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.
As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law. (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.) I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."
Friday, July 31, 2015
Politics of pot continuing to heat up (and partially chronicled at Marijuana Law, Policy & Reform
A new Politico article suggests that Congress is in the midst of a "summer fling With marijuana," and that suggesion only reinforces my view that marijuana should definitely be a topic raised during next week's big GOP debate in Cleveland. And any and everyone interested in the modern politics of modern marijuana reform — which is burning hot at the local, tribal, state and international levels as well as in Congress — should be sure to check out my efforts to keep on top of some of the top stories at Marijuana Law, Policy & Reform. Here are links to some recent posts of note from MLP&R:
ABA Journal spotlights continued child porn federal sentencing challenges
This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures. Here is an excerpt:
Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.
According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.
The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.
If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....
One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....
At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.
“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”
To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton. A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online. The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.
“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”
Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter
I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case. Here are the details:
Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....
Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits. Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.” Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.
In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court. A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009. The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses. It prompted one of the largest food recalls in U.S. history.
Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....
“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...
“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....
Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.
Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.
Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.
Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.
Thursday, July 30, 2015
What accounts for decline in federal white-collar prosecutions (and should we care)?
The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:
Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.
The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.
During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.
The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).
The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.
White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Recent capital developments prompts query: "Is the death penalty dead in Washington?"
The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state. Here are the details:
Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.
"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.
Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.
"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."
"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."
Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.
Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley. The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:
Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.
Grassley has moved on the issue of mandatory minimums. While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way. "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.
Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing. Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.
On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch. "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.
At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve. A narrow subset of nonviolent drug offenders will be.
"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity. We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"
Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act.... The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success. Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.
Even once the new bill is introduced, however, there will still be changes made to it. And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.
Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes. Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol. The floor may be another place for senators to add more stringent reductions in mandatory minimums.
Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year. I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.
Wednesday, July 29, 2015
Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory
As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):
This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.
To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.
Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 US at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.
Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:
I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it. The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution. Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines. Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.
Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
In this post last week, I linked to this white paper produced by the National Association of Assistant US Attorneys titled "The Dangerous Myths of Drug Sentencing 'Reform'." This week has now brought this response from Families Against Mandatory Minimums (FAMM) titled in full, "The Dangerous Myths of NAAUSA: A Response to the National Association of Assistant U.S. Attorneys’ Paper Titled 'The Dangerous Myths of Drug Sentencing Reform'." Here are excerpts from the executive summary, introductory paragraph and conclusion of this FAMM response paper:
The National Association of Assistant U.S. Attorneys (NAAUSA), which represents neither the U.S. Department of Justice nor a significant percentage of assistant U.S. attorneys, opposes mandatory minimum sentencing reform on the basis of several unfounded and patently false claims. This paper rebuts those claims with data and facts...
The National Association of Assistant U.S. Attorneys (NAAUSA) recently released a white paper in which it purports to respond to the myths of sentencing reform advocates. Before addressing its substantive points, it is important to keep in mind who NAAUSA represents — or, more important, who it does not represent. NAAUSA does not represent federal prosecutors or the offices in which its members work. The U.S. Department of Justice (DOJ), which represents all federal prosecutors and prosecutes all federal cases, supports mandatory minimum drug sentencing reform. NAAUSA does not even speak for all assistant U.S. attorneys; only 28 percent of the nation’s assistant U.S. attorneys are members of NAAUSA, according to the group’s website. Former federal and state prosecutors now serving in Congress, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Patrick Leahy (D-VT), are leading sponsors of federal mandatory minimum sentencing reforms opposed by NAAUSA.
While advocates from all points of the political spectrum, law enforcement groups, members of both parties of Congress, House Speaker John Boehner, the Department of Justice, and President Barack Obama all agree that significant mandatory minimum drug sentencing reform is needed — and the sooner the better — NAAUSA is using scare tactics and patently false and unsupported claims to attempt to maintain a status quo that indiscriminately incarcerates thousands of nonviolent drug offenders for decades, at the cost of billions of dollars that could be better invested in law enforcement and crime prevention. NAAUSA wants to maintain a sentencing system that is unjust, ineffective, expensive, harmful to families, and depleting law enforcement of limited resources. NAAUSA may call its opposition to mandatory minimum drug sentencing reform many things, but it cannot be called a serious effort to improve public safety.
Hoping GOP debates take up criminal justice reforms (including clemency and marijuana policy)
Next week in Cleveland is the first "real" event of the 2016 Prez campaign: the top ten of the sixteen declared GOP candidates will share the stage for a debate. And, as the title of this post highlights, I am rooting hard (but not really expecting) that a number of criminal justice reform issues, including topics like clemency and marijuana reform, play a big role in this first big debate and in the many future debates sure to follow.
Because I am professionally engaged in criminal justice issues, I am sure it comes as no surprise that I am hoping this first debate takes up these issues. But I also think these issues are especially (1) timely as Prez Obama and Congress start paying more attention to federal sentencing reform, and (2) likely to lead to a number of diverse and insightful discussions among the many GOP Prez candidates. Unlike issues like ObamaCare and the Iran deal, where all GOP voices have fairly comparable records and perspectives, all the GOP candidates (both major and minor) have very different track records and have engaged in very different forms of policy advocacy on criminal justice and sentencing issues.
In a post next week, I may start articulating specific criminal justice reform question that I think would be especially valuable to pose to all GOP candidates. For now, I just wanted to spotight my view and hope that the 2016 campaign, as it reallt gets going, will give considerable and serious attention to criminal justice issues from start to finish.
"Should Therapists Have to Report Patients Who Viewed Child Pornography?"
The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California. The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:
Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities. The requirement applies to adults who admit to having viewed explicit images of children. And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.
Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”
Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”
Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation. “If we don't know about it,” he said, “we can't prosecute it." The effect would ostensibly be fewer victims of an abhorrent industry.
But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.
July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)
Taking stock of the tough-on-crime crowd's "resolute oarsman, pulling with all his might against the current"
A number of helpful readers have already made sure I did not miss this terrific lengthy Slate piece by Mark Obbie profiling Bill Otis. The article is a great read, and it generally gives Bill the respect he has earned and deserved in modern debates over modern sentencing. The piece is headlined "Last Man Standing: Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis." Here is one of the many great passages from the piece:
In congressional hearings, seminars, and news stories heralding the bipartisan reform movement and the practical inevitability of changes in federal law, Otis serves as the go-to voice for maintaining tough-on-crime sentencing.
Pundits, policy wonks, academics, and journalists seem in lockstep agreement that there really is no debate anymore about whether it’s time to pull back from the extremes that gave America its distinction as the world’s prison warden. As names like Meese, Gingrich, and Koch speak up on the other side of the divide, Otis seems increasingly isolated, the only man fighting a war that ended a long time ago.
But there are compelling reasons — strategic and substantive — not to count Otis and his views out just yet. For all the talk that criminal justice reform has finally reached critical mass, the last Congress failed to act, even when offered the low-hanging fruit of the Smarter Sentencing Act, which would only tinker modestly with the length of sentences for nonviolent drug offenses. This week, Iowa Republican Chuck Grassley, the chairman of the Senate Judiciary Committee and a longtime opponent of reform, signaled that he would finally bow to pressure from all sides and deliver a bipartisan reform bill by the time Congress takes its summer break. But a wide gulf surely separates Grassley’s version of reform from practically everyone else’s, and none of the proposals before Congress are more than a tentative first step toward undoing decades of harsh sentencing policy. Reformers’ best-case scenario is a long slog ahead, with Otis and his arguments dogging their every step.
Tuesday, July 28, 2015
Are "deep red states" really "rethinking the death penalty"?
The question in the title of this post is prompted by this new American Prospect piece headlined "Why Deep Red States Are Rethinking the Death Penalty." Here are excerpts:
[Marc] Hyden, 31, [is] one of the nation’s leading conservative anti-death-penalty activists, a small but growing group that sees the death penalty as antithetical to conservative values and the cause of limited government. Expensive, inefficient, and lethal, execution has come to represent much that’s wrong with big government today in many conservatives’ minds — particularly millennials.
And Hyden is one of their most visible spokesmen. As the national advocacy coordinator at Conservatives Concerned About the Death Penalty (CCATDP), a project at Equal Justice USA, Hyden speaks at Republican conferences and clubs, liaises with the media, attends Tea Party rallies, and is, more generally, part of an insurgency of conservative activists seeking to end capital punishment in deep red states.
That movement has been most visible in Nebraska, where a campaign to ban the death penalty has inspired fierce debate among the state’s deep red electorate. This past May, Nebraska’s heavily Republican legislature voted both to pass LB268, a repeal of the state’s death penalty, and override a veto from Republican Governor Pete Ricketts. But death penalty advocates like Ricketts have vowed not to go down without a fight. On June 1, Nebraskans for the Death Penalty, a recently formed group of the governor’s political allies, filed an initial petition with the Secretary of State to put a repeal of LB268 on the state’s ballot in 2016....
The mere concept of the state putting someone to death is antithetical to the principle of limited government. “There’s no greater power than the power to take a life, and our government currently retains that authority,” says Hyden, “If you don’t trust a government to deliver a piece of mail or launch a healthcare website, why would you trust them to take a life?”...
These conservative arguments against the death penalty aren’t just taking hold in Nebraska. They seem to be having an effect in other deeply conservative states, as well.
One state south, in Kansas, a repeal bill was introduced in the House this year, but it failed to advance. According to Mary Sloan, the executive director of the non-partisan Kansas Coalition Against the Death Penalty, the bill will carry over into the 2016 legislative session and is expected to have Democratic, moderate Republican, and conservative Republicans sponsors. Sloan is optimistic about the bill’s chances, citing a need to focus on more immediate issues like the budget, and not a lack of support, as the reason for its failure to advance this year.
Tennessee, another conservative state, is not, as Kansas appears to be, on the brink of abolition, but it’s still closer to getting rid of the death penalty than you may think. Stacy Rector, the executive director of Tennesseans for Alternatives to the Death Penalty, says a few years ago she would have said her state was a decade or so away from passing a repeal — now her best guess is three to five years. “It feels like the speed at which things are changing has kicked into high gear,” she says.
The obvious question to ask is, of course, Why now? There’s an argument to be made that it’s, at least in some part, a product of generational change. The more libertarian-leanings of young Republicans are well documented. Sixty-eight percent of millennial Republicans, for example, support the legalization of marijuana, compared to just 47 percent and 38 percent of their Gen X and Boomer counterparts, respectively. The death penalty seems to be another one of those issues in which young Republicans are choosing limited government over the traditional party line.
When he goes out and talks to young people, Hyden definitely notices how receptive they are to his arguments about government overreach. “I love talking to young people,” he says, “They tend to be much more skeptical of government power, in general.”
More talk that all the talk about federal sentencing reform is about to produce some action
As July winds down and as more opponents of sentencing reform have become more vocal, I was coming to believe that all the talk (and more talk) of bipartisan efforts to finalize a federal sentencing reform bill was going to end up as another example of inside-the-Beltway sound and fury signifying nothing. But this new New York Times article, headlined "Push to Scale Back Sentencing Laws Gains Momentum," has me wanting to believe that optimism is still more justified than cynicism on this sentencing reform front. Here are excerpts:
For several years, a handful of lawmakers in Congress have tried to scale back tough sentencing laws that have bloated federal prisons and the cost of running them. But broadbased political will to change those laws remained elusive.
Now, with a push from President Obama, and perhaps even more significantly a nod from Speaker John A. Boehner, Congress seems poised to revise four decades of federal policy that greatly expanded the number of Americans — to roughly 750 per 100,000 — now incarcerated, by far the highest of any Western nation.
Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee who has long resisted changes to federal sentencing laws, said he expected to have a bipartisan bill ready before the August recess. “It will be a bill that can have broad conservative support,” said Mr. Grassley, who as recently as this year praised the virtues of mandatory minimums on the Senate floor....
Of the 2.2 million men and women behind bars, only about 207,600 are in the federal system, according to the Federal Bureau of Prisons. But because the federal system has grown at the fastest rate of any in the country, many on the left and the right say they believe it exemplifies the excesses of America’s punitive turn. “If we can show leadership at the federal level,” Mr. Durbin said, “I think it will encourage other states to open this issue up for debate. The notion that we can create a bipartisan force for this really has value.”...
The dynamic is similar to the fight this year over changes to the Patriot Act when younger, more libertarian members — again supported by Mr. Boehner and Mr. Obama — worked with Democrats to change the law and eventually even won over a reluctant Mr. Grassley.
Federal authorities grant parole to spy Jonathan Pollard after 30 years in prison
As reported in this new New York Times story, headlined "Jonathan Pollard, Spy for Israel, to Be Released on Parole in November," a high-profile defendant who committed his crimes before the federal system abolished parole has now benefited from the reality that life sentences in the past frequently just meant a long period before parole eligibility. Here are the details:
Jonathan J. Pollard, who was sentenced to life in prison in 1985 for passing classified documents to the Israeli government, will be released on parole in November after 30 years in prison, a government panel decided on Tuesday. Mr. Pollard’s lawyers announced the decision of the United States Parole Commission on Tuesday afternoon, and officials at the Department of Justice confirmed that Mr. Pollard had been granted parole.
Mr. Pollard, 60, had been scheduled for mandatory parole in November, but could have been kept in prison for years longer if the United States government had objected to his release, citing concerns about an ongoing threat to national security.
Last week, officials for the Department of Justice signaled that they would not object to Mr. Pollard’s release if the United States Parole Commission determined that he should leave the prison in North Carolina where he is being held. “The Department of Justice has always maintained that Jonathan Pollard should serve his full sentence for the serious crimes he committed, which in this case is a 30-year sentence, as mandated by statute, ending Nov. 21, 2015,” Marc Raimondi, a spokesman for the department, said in a statement....
White House officials have denied that Mr. Pollard’s imminent release — something that Prime Minister Benjamin Netanyahu of Israel and others in the country have demanded for years — is an attempt to placate the Israelis in the wake of the Iran deal. “Mr. Pollard’s status will be determined by the United States Parole Commission according to standard procedures,” Alistair Baskey, a spokesman for the National Security Council, said last week. “There is absolutely zero linkage between Mr. Pollard’s status and foreign policy considerations.”
"Can a Public Defender Really Handle 700 Cases a Year?"
The question in the title of this post is the headline of this Mother Jones piece, which carries this subheadline: "A new ACLU lawsuit takes on a California county where 60 public defenders work 42,000 cases every year." Here is how the piece starts:
After being charged with burglary in 2013, Peter Yepez waited in the Fresno County, California, jail for a month before his assigned public defender came to talk to him. This delay was a sign of what was to come: Between arraignment and sentencing Yepez spent more than a year being shuffled between nine different Fresno County public defenders, who he says told him they did not have time to work his case. By then he'd missed his daughter's graduation and his young son's memorial service, and had fallen into depression.
Though he was originally accused of a domestic burglary, during those many months prosecutors added additional charges to his case, alleging that a victim had been present during burglary even though a police report filed at the time of the crime had claimed no one was there. The new allegations would bump his original charge to a violent felony. Still, Yepez's public defender advised to him to accept all the charges and the punishment that would come — and so he did. Now Yepez's record reflects a felony conviction.
Today Yepez is a plaintiff in a lawsuit filed recently by the American Civil Liberties Union. The lawsuit, intended to expose the deficiencies in Fresno County's public defense system was filed against Fresno (a county in which close to a quarter of the population lives below the federal poverty line), the state of California, and its governor, Jerry Brown, for systematic issues that the ACLU claims led to thousands of poor defendants to be denied their constitutional right to adequate representation. All of this, the ACLU says, has perpetuated greater racial inequalities in the criminal-justice system.
According to the ACLU's complaint:
With an annual caseload of 42,000 and fewer than 100 people on staff, the Fresno County Public Defender's Office is unable to keep up.
The American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals recommends caseload caps at 150 felony cases or 400 misdemeanor cases per full time attorney. But the 60 public defenders on Fresno's staff carry caseloads of more than four times that amount.
The county's public defenders office has high turnover rates — 50 attorneys quit between 2010 and 2014 — and new hires are often inexperienced.
Minorities make up about 70 percent of those arrested in Fresno. The ACLU claims that immigrants are often instructed to plead guilty without being told how it might affect their immigration status.
Obama Administration talking up restoring Pell grants for incarcerated
As reported in this Wall Street Journal article, the "Obama administration plans to restore federal funding for prison inmates to take college courses, a potentially controversial move that comes amid a broader push to overhaul the criminal justice system." This strikes me as big (and potentially controversial) news, and here are more of the details:
The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.
Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens....
A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t. Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.
Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.
An Education Department spokeswoman declined to comment. Asked Monday whether the agency would restore Pell grants for prisoners, Mr. Duncan told reporters, “Stay tuned.”
Stephen Steurer, head of the Correctional Education Association, an advocacy group, said two Education Department officials told him at a conference early this month the agency was moving to restore Pell grants for prisoners and allow many colleges and universities to participate. Money from the grants would directly reimburse institutions for the cost of delivering courses in prisons rather than go to prisoners, Mr. Steurer said.
“It will be substantial enough to create some data and to create enough information for some evaluation,” said Rep. Danny Davis (D., Ill.), who is co-sponsoring a bill with Rep. Donna Edwards (D., Md.) to permanently restore Pell grants for prisoners. “I think the political landscape has actually changed since the 1990s,” said Ms. Edwards. “We haven’t really been able to get a handle on recidivism. We have to present some training and opportunities. These are programs that work.”
She said her bill would cost relatively little up front—in the tens of millions of dollars—while having the potential to cut societal costs over the long term by reducing recidivism rates. Maryland spends nearly $40,000 a year per prisoner, she said.
But spending tax dollars on college for prisoners strikes many as an affront to families that have borrowed heavily in recent years to cope with skyrocketing college costs, causing student debt to soar to $1.3 trillion. “If we really want to keep people out of prison, we need to promote education at younger ages,” said Rep. Chris Collins (R., N.Y.).
Last year, New York Gov. Andrew Cuomo tabled a plan to use state dollars on in-prison college courses because of opposition from lawmakers. But in California, Gov. Jerry Brown signed legislation in June that includes $12 million to promote statewide priorities, including college classes in state prison, said state Sen. Loni Hancock, whose 2014 bill paved the way for an agreement between California corrections officials and the chancellor of the state’s community colleges. Ms. Hancock said classes could begin as soon as this fall.
Monday, July 27, 2015
John Oliver (often amusingly) covers Prez Obama's clemencies and mandatory minimums
Making the case that sentencing reform should (and must) include "violent" offenders
Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders. Here I will provide links to and snippets from these pieces while suggesting both should be read in full:
In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":
The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.
The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....
Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.
Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.
In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":
It’s true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama’s claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.
Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.
In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.
But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.
That’s what made Obama’s commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.
"On the Argument That Execution Protocol Reform is Biomedical Research"
The title of this is the title of this notable and timely new piece by Paul Litton now available via SSRN. Here is the abstract:
Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure. Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.” Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated. Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research permissible.
Part I of this essay grants Shah’s conclusion that death penalty states are engaged in human subjects research. However, it argues that if protocol reform amounts to research, it is unethical for lacking social value, even if capital punishment is justified. The purpose of this “research” is to make executions palatable to the public and, thereby, maintain support for the death penalty. (Its purpose is not to find a painless means of killing; we already have that knowledge). However, the state disrespects its citizens by attempting to influence public opinion by a means that has nothing to do with reasons to support its policies.
Part II provides reasons to doubt that the law and ethics of research should govern protocol reform. Contrary to Shah’s hopes, the application of the law and ethics of research to executions will not help ensure less suffering for the condemned. Finally, Part III argues that describing lethal injection reform as human subjects research fails to add moral or legal reasons to condemn the way in which states have conducted recent executions. The basic problem is not that protocols represent “poorly designed experimentation,” but rather that they are poorly designed.
Monday funnies: Let's imagine who might be on Prez Donald Trump's SCOTUS shortlist
In the midst of having a serious discussion with a serious lawyer concerning of the possible future direction of some serious Supreme Court criminal justice jurisprudence, a somewhat silly (and ridiculous?) topic came up: if somehow Donald Trump were to be our next President, just who might he appoint to fill the next few Supreme Court opennings?
Of course, thinking about who the next President might appoint to the Supreme Court is anything but a silly topic. This is especially true because there is a real chance the next President, if he or she serves for two full Terms, could have as many as four SCOTUS seats to fill. The seemingly silly part come from imagining Donald Trump is the one who actually has the constitutional power to fill those spots.
The lawyer I was talking too quickly came up with one seemingly fitting name: Mark Cuban. Might dear readers enjoy suggesting some others?
"Mr. Chairman, the president’s clemency power is beyond dispute"
The title of this post is the headline of this new commentary published in The Hill authored by Samuel Morison, who formerly served as a staff attorney in the Justice Department’s Office of the Pardon Attorney. The piece responds to the curious letter sent by House Judiciary Committee Chair Bob Goodlatte and fellow Republican committee to AG Lynch (discussed here) expressing "deep concern" for how the President has (finally) started to make serious use of his constitutional clemency powers. Here are excerpts (with links included):
Goodlatte and his colleagues are certainly entitled to take issue with Obama’s decision to grant a measure of relief to persons sentenced under a set of laws that are widely viewed to have been, in practice if not by design, racially discriminatory and unjust. But their constitutional claims are so illiterate that it is difficult to tell whether they expect the attorney general to take them seriously.The chairman’s criticism ignores settled practice stretching back to the beginning of the Republic. Throughout American history, presidents have granted executive clemency to “specific classes of offenders” on dozens of occasions, from George Washington’s pardon of the Whiskey Rebels in 1795 to George H.W. Bush’s pardon of the Iran-Contra defendants in 1992. Perhaps more to the point, in the early 1960s, John F. Kennedy and Lyndon B. Johnson commuted the sentences of several hundred prisoners serving mandatory minimum sentences under the Narcotics Control Act of 1956, without objection by Congress.
The historical lack of controversy shouldn’t be surprising. Under our tripartite system of government, an act of executive clemency in no sense “usurps” legislative or judicial authority. Rather, in the words of Justice Oliver Wendell Holmes, it “is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.” The president’s pardoning authority is therefore limited only by the text of the Constitution itself, not by the transitory terms of the criminal code. Indeed, that was the Framers’ point in giving the power to the president in the first place, to act as a check on the other branches.
To be sure, the president’s systematic exercise of the pardon power to benefit “specific classes of offenders” has not gone entirely unchallenged by Congress. But the Supreme Court long ago resolved this dispute in favor of Obama’s authority to redress the injustices entrenched by the current federal sentencing regime. In the aftermath of the Civil War, President Andrew Johnson issued a series of amnesty proclamations that restored the civil rights of former Confederate sympathizers. This was enormously controversial at the time, not least because it undermined the Radical Republican’s designs for the post-war reconstruction of Southern society.
In the ensuing legal battle, the Supreme Court repeatedly struck down Congress’s attempts to constrain the president’s pardoning authority. In 1866, the Court held, without qualification, that “[t]his power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
The Court also rejected the effort to draw a false distinction between pardons granted to specific individuals on a case-by-case basis and a pardon granted to a class of persons by means of an amnesty proclamation, precisely the claim that House Republicans are making against Obama. The president is therefore authorized to grant a general amnesty without congressional sanction, protestations to the contrary notwithstanding.
Finally, there is no reason to doubt that the president can grant clemency because of his own policy judgment about a particular law. As one conservative federal judge recently opined, it is a “settled, bedrock principle of constitutional law” that “the president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law.”
The historical irony, of course, is that a presidential power forged in a bitter political dispute over the property rights of Confederate rebels is now being used to afford a measure of justice to federal drug offenders, who are disproportionately African-American. Turnabout, I suppose, is fair play. But the president’s power is beyond dispute.
A few prior recent related posts:
- "Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"
- Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)
- Highlighting why dozens of commutations barely move the mass incarceration needle
- GOP House members request AG Lynch to provide accounting of Prez Obama's commutations
Sunday, July 26, 2015
Could brain implants "make the death penalty obsolete"?
The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete." For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way). Here are excerpts:
The death penalty is one of America’s most contentious issues. Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them). Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....
Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.
For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors. Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts. This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?
Recently, the commercially available Thync device made headlines for being able to alter our moods. Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy. So the technology to change behavior and alter the brain isn’t science fiction. The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.
Some people may complain that implants are too invasive and extreme. But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs. In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them. After all, some people — including myself — believe much violent crime is a version of mental disease.
With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy. Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society....
Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment. We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.
Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably. In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time. Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.
Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught. Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything. Simply put, physical crimes will be much harder to commit. And if people knew they were going to be caught, crime would drop noticeably. In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).
Inevitably, the future of crime will change because of technology. Therefore, we should also consider changing our views on the death penalty. The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.
Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail. The US prison system costs four times the entire public education system in America. To me, this financial fact is one of the greatest ongoing tragedies of American economics and society. We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.
Saturday, July 25, 2015
"Federalism and Retroactivity in State Post-Conviction Proceedings"
The title of this post is the title of this notable article authored by Stephen R. McAllister appearing in the latest issue of The Green Bag. Here are excerpts from the introduction:
This article builds on an amicus brief I drafted for Kansas in Danforth v. Minnesota several years ago, and considers whether the federal retroactivity doctrines are binding on the states when it comes to the states’ own post-conviction proceedings. The article does not take issue with the well-settled propositions that Supreme Court decisions issued before state criminal cases become “final” are binding on the states and their courts, and that the federal courts will apply Teague retroactivity principles in federal habeas proceedings.
My conclusion is that there is no federal constitutional bar to the states developing their own retroactivity doctrines for state postconviction proceedings, whether those doctrines are broader or stricter than a federal habeas counterpart such as Teague. So long as state legislatures and state courts make that decision as a matter of state law, there is no federal constitutional principle at stake, and no federal interests are harmed. That said, Montgomery v. Louisiana does not seem a proper case in which to decide the issue.
Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
One aspect of the modern death penalty that always irks me is the all-too-common reality that some of the very worst-of-the-worst murderers often get the help of some of the very best-of-the-best defense lawyers (and almost always at taxpayer expense). As I write this post, there are literally tens of thousands of federal drug prisoners desparate to get the help of any lawyer to help them prepare a decent clemency petition. But, as this local article highlights, white supremacist mass murderer Dylann Roof now is going to be represented in federal court by one of the very best defense lawyer in nation:
Legendary death penalty lawyer David Bruck, who has more than 35 years of experience in South Carolina and around the nation representing people accused of heinous killings, has been appointed lead defense lawyer for alleged white supremacist killer Dylann Roof, according to federal court records....
Roof, 21, of the Columbia area, is charged with killing nine African-Americans in June during a prayer meeting at a historic downtown Charleston church, “Mother” Emanuel AME. Evidence against him includes a purported confession, an alleged online manifesto in which he announced his intention to start a race war by going to Charleston and Internet photos on his alleged website of him and his gun.
A federal grand jury in Columbia indicted Roof on Wednesday on 12 counts of committing a hate crime against black victims, 12 counts of obstructing the exercise of religion and nine counts of the use of a firearm to commit murder....
Bruck, 66, has the kind of experience Roof needs, lawyers familiar with death penalty cases said Thursday. “He’s the total package, versed in the law and quick on his feet at trial. He never screams or yells — he’s a methodical, intentional kind of guy,” recalled Columbia attorney Dick Harpootlian, who as 5th Circuit prosecutor won a death penalty case over Bruck in a 1990s trial, only to lose to Bruck in oral arguments before the U.S. Supreme Court in the same case.
Columbia defense attorney Jack Swerling, who has tried a dozen death penalty cases, said he has consulted Bruck on most of them. “He’s my go-to guy,” said Swerling, known as one of South Carolina’s best criminal defense lawyers. “He’s formidable, brilliant, and he is a passionate advocate against the death penalty. He truly believes it’s not appropriate in any case. That is his heart and soul.”
The Canadian-born Bruck, who graduated from the University of South Carolina law school and got his start defending S.C. death penalty cases in the early 1980s, helped win a life sentence in the nationally publicized 1995 case of child killer Susan Smith, now in state prison for drowning her children in a Union County lake. He recently helped defend Dzhokhar Tsarnaev, the Boston Marathon bomber who was sentenced to death in May....
But his record shows that few of his clients are acquitted by juries. Instead, Bruck concentrates on either getting life sentences during the punishment phase of a capital case, or getting a death penalty overturned on appeal. Over the years, Bruck has been involved in hundreds of death penalty cases across the country, either as a lawyer or adviser.
Since 2004, Bruck has been director of Washington & Lee University’s death penalty defense clinic, the Virginia Capital Case Clearinghouse. Before that, Bruck practiced criminal law in South Carolina for 28 years, specializing in death penalty cases....
Most of the crimes Roof has been charged with in both state and federal arenas are death penalty eligible. However, a formal decision to seek the death penalty has not been announced by either state or federal prosecutors. Death penalty cases are so complex that federal judges appoint defense lawyers knowledgeable in capital punishment law and trials well before a case has been formally declared a death penalty case.
“Judges don’t want to wait on the Justice Department,” said Columbia attorney Johnny Gasser who has prosecuted the only three federal death penalty cases in South Carolina’s modern era. “Judges want to go ahead ... to ensure that the accused is appointed the best legal representation possible.”
Of course, as critics of modern death penalty are right to highlight, not every capital defendant gets great (or even competent) defense representation. In fact, the sad reality in most state capital prosecutions is that poor representation has historically been much more common than top-flight lawyering. But, as we have now seen due to the mass murders committed by Dzhokhar Tsarnaev and Dylann Roof, when federal prosecutors get involved in a capital case, it is far more likely for some of the best lawyers in the country to be involved on the defense side. (This reality is one reason I quite seriously contend that capital punishment should be the (almost) exclusive province of federal prosecutors, and also a reason I half-jokingly suggest murderers should be sure to kill in a way that garners federal attention and triggers federal jurisdiction.)
Friday, July 24, 2015
"Convicted Republicans Plead for Mandatory Minimums Changes"
The title of this post is the hedline of this notable new Roll Call piece. Here are excerpts:
Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....
Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.
Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.
Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.
Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.
Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.
“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.
Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.
“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”
Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”
Many notable passages in recent sentencing reform speech by DAG Yates
Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts. Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice. The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:
[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform. I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system. And it’s because of that I believe that we can and we must do better....
I’ve been a prosecutor for 26 years. I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time. But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....
While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety. At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity. And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t. As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget. This comes with great costs. Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.
From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget. Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists. These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....
Some states have been great innovators in criminal justice reform. I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response. And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well. In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.
Despite all of this, there are some who want to keep things as they are. One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals. Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago. As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent. Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy. So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....
I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less. Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent. It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.
As prosecutors, it is our obligation to speak out against injustices and to correct them when we can. That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.
Related recent prior posts:
- New Deputy AG suggesting every too-long federal prison sentence hurts public safety
- DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."
July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
Looking ahead to SCOTUS 2015 Term's sentencing cases on its criminal docket
Over at SCOTUSblog, Rory Little has this terrific new post highlighting that 11 of the 35 cases already on the Supreme Court's docket for its next Term involve criminal law cases. Here is an except from the start of this post, along with the description of a few of the coming SCOTUS cases that have at least one sentencing fan especially revved up:
Eleven of the cases in which review has already been granted for the next Term are criminal-law or related (under my generous standards). The Eighth Amendment portends to be a particular focus: four cases involve the death penalty, and a fifth involves juvenile life without parole. The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment. I can’t recall a prior Term where that was true at the end of the prior Term.
Finally, five of the eleven cases in which review has been granted are from state supreme courts, suggesting that at least some of the Justices realize that waiting for a criminal case to come to them via a later federal habeas petition can obscure the legal question presented, due to the highly deferential standards now embodied in the federal habeas statute, 28 U.S.C. § 2254 (the 1996 AEDPA amendments).
Here are brief descriptions of the criminal-law questions presented in the cases granted so far:
1. Hurst v. Florida: Whether Florida’s death sentencing scheme, which permits a judge to find aggravating factors to impose death (and which does not require a jury to determine mental disability or to be unanimous in their findings or sentence) violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona. (Florida Supreme Court)...
3. Montgomery v. Louisiana: Whether Miller v. Alabama, which prohibits mandatory life without parole for juveniles convicted of homicide, applies retroactively. (Louisiana Supreme Court)
4 & 5. Kansas v. Carr (along with another case with the same caption but a different case number) and Kansas v. Gleason: (1) Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court ruled; and (2) whether the trial court’s decision not to sever co-defendants for sentencing in a capital case violates an Eighth Amendment right to “individualized sentencing.” (Kansas Supreme Court)....
8. Lockhart v. United States: Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)
Thursday, July 23, 2015
Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
The National Association of Assistant US Attorneys (NAAUSA) has recently prepared this white paper "to inform the public discourse about our current federal drug sentencing system and the most dangerous myths of drug sentencing 'reform'." Here is the paper's introduction to its list and discussion of seven most dangerous myths:
Congress is considering legislation that would dramatically change how we sentence drug traffickers in our federal courts. These legislative proposals, including one euphemistically named the “Smarter Sentencing Act” (SSA), would slash federal minimum sentences for trafficking in all dangerous drugs by at least half and would make thousands of federal prisoners convicted of serious drug trafficking crimes eligible for early release without regard to their criminal history, violent background, or ties to gangs, drug trafficking organizations, or even international drug trafficking cartels.
Proponents also gloss over the significant changes in federal sentencing guidelines that have already and will continue to result in the early release of thousands of convicted drug traffickers. These sentencing reductions and early prisoner releases have occurred and will continue to occur regardless of whether Congress enacts the SSA or other sentence reduction proposals. The impact of these early releases is certain to inflict greater strains upon law enforcement efforts to preserve safety and dismantle gangs and drug trafficking organizations. If the Smarter Sentencing Act or similar proposals are enacted, they will only aggravate and compound these harms. Congress will have made our country less safe and contributed toward the reversal of a 20-year period of reduced crime in our nation.
It is critical that Congress avoid this path and understand the mistruths propounded by advocates of sentencing “reform” through the following seven myths.
In some subsequent posts I hope to find time to discuss some of the NAAUSA's discussion of at least some of these "most dangerous myths."
Is it a big concern when a Prez candidate gets "big money" from private prison companies?
The question in the title of this post is prompted by this local story from Florida headlined, "Marco Rubio is Getting Big Money from For-profit Prison Companies." Here are excerpts:
According to Open Secrets, the second-largest for-profit prison operator in the country, GEO Group, is one of the top contributors to Marco Rubio's presidential campaign. Between 2013 and 2014, GEO Group gave Rubio $41,500, more than any other presidential candidate. The group is the ninth highest contributor to Rubio's campaign.
Is that a problem? Prison reform advocates think so, pointing to Rubio's actions as an elected official that have helped for-profit prisons — including a $110 million state contract that went to GEO back when he was Speaker of the Florida House.
"On a system that makes them wealthier the more people there are in jail, the only reason they would lobby these sort of things is because they expect their money to have a financial return," says Paul Kruger, executive director of Florida's chapter of Citizens United for Rehabilitation of Errants, a prison reform advocacy group....
The presidential contender's ties to the for-profit industry are not new. And prison reform activists have always been wary of the lucrative connection between for-profit prisons and politics. But Rubio's ties are gaining steam online thanks to a petition demanding that Rubio cut ties with GEO Group for good now that he's running for president.
"Your ties to the prison industry go back to your years in the Florida state legislature and they’re disturbingly close," the petition states. "A presidential candidate should not be associated with imprisoning people for profit. You must break ties with the for-profit prison industry."
The for-profit prison industry is big business, raking in almost $3 billion a year nationally. Boca Raton-based GEO Group operates prisons throughout the southeast and since 2009 have added 7,600 new prison beds and grown by 10 percent.
Advocates point out that that Rubio's ties go beyond just taking donations. Back in 2006, Rubio hired Donna Arduin as an economic consultant. She's a former trustee for GEO Group. In 2011, after being elected a Florida state senator, Rubio hired Cesar Conda as his chief of staff. Conda is the co-founder of Geo Group's main lobbying firm, Navigators Global. While working under Rubio, Conda was still earning $150,000 from Navigators Global from a stock buyout agreement. In 2014, Conda went to lead Rubio's PAC, Reclaim America. It was during Conda's management that GEO Group became one of Rubio's top-10 contributors. Now, Conda is working back at Navigators Global....
Kruger contends that the companies are fueling a prison-industrial complex as they funnel big bucks into politics. He believes that Rubio — or any elected official in politics — shouldn't accept money from for-profit prison groups. "They don't do it because the guy is handsome," Kruger says. "They want to decide who goes to jail and for how long."
"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
Wednesday, July 22, 2015
Intriguing comments on prisons from GOP candidate Ben Carson
Because I cannot quite figure out which of the current 16 GOP Presidential candidates to take seriously, I am inclined to spotlight in this space any interesting comment made by any of the candidates concerning sentencing law or policy. Today, in this lengthy Washington Post article, I see Dr, Ben Carson recently had some interesting comments about modern prison practicalities and policies:
In addressing the young Republicans, Carson also said that he, like President Obama, had visited federal prisons. "I was flabbergasted by the accommodations -- the exercise equipment, the libraries and the computers," he said. He said he was told that "a lot of times when it's about time for one of the guys to be discharged, especially when its winter, they’ll do something so they can stay in there."
At the same time, Carson said that too many Americans are going to prison. "We're not doing things the right way," he said. "A lot of people that we incarcerate don’t need to be incarcerated."
After the event, he elaborated. "I think that we need to sometimes ask ourselves, 'Are we creating an environment that is conducive to comfort where a person would want to stay, versus an environment where we maybe provide them an opportunity for rehabilitation but is not a place that they would find particularly comfortable?'" he told reporters.
Do gubernatorial moratoria on executions impact securing of death sentences?
The question in the title of this post is raised by the start of the capital phase of the death penalty trial of Aurora theater shooter James Holmes and is discussed in this interesting Los Angeles Times article. The article is headlined "Death penalty is sought against James Holmes, but governor stands in the way," and here are excerpts:
When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of "The Dark Knight Rises." For the families of the dead and wounded. Then he cautioned that last week's verdict "is just a stepping stone" on the path to justice.
The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office....
Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.
Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries' willingness to carry out the ultimate punishment. "What's the role of these reprieves? I don't think there's an independent effect, but it's part of an overall drift away from the death penalty," said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.
Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber....
In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend's relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson's family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.
The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an "indefinite reprieve" to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese's pizza restaurant in 1993 and was sentenced to death three years later.
The reprieve was granted as Dunlap's execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.
The political pushback was swift. Moments after the governor announced Dunlap's reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap's execution "a no-brainer," according to the Denver Post, and said the governor refused "to make any hard decision today.... This is inaction. This is shrugging. This is not justice."
Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes' offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.
Still, a sitting governor's ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.
"I think it's impactful when the governor of your state says your state should never be involved in killing anyone," said Craig Silverman, a former Denver chief deputy district attorney. "However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not."
DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."
I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:
UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.
The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.
This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.
Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”
Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.
It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.
As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.
As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.
Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.
“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....
Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions. Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.
“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”
Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.
For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”
July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Tough-on-crime crowd making the case for modern mass incarceration
The folks who blog at Crime & Consequences are among the most effective and eloquent advocates for the modern size, scope and operation of the American criminal justice system, and they have been especially active of late lamenting the ever-growing number of politicians calling the current system broken and urging reduced reliance on incarceration. Here are links to just some of the major posts in this vein from C&C in the last few weeks (some of which link to others criticizing sentencing reform efforts):
Tuesday, July 21, 2015
"Why all Americans should support Obama on prison reform"
The title of this post is the headline of this notable opinion piece by Michael Brendan Dougherty at The Week. Here are excerpts:
Obama's first words on prison reform last week were absolutely right: "We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison — and we shouldn't be making jokes about it in our popular culture. That's no joke. These things are unacceptable."
Much of the commentariat blames our prison system's woes on the politics of "law and order" from the 1970s through the early part of the new millennium. But what Obama is asking for is "law and order" for our prisoners and prisons. He deserves bipartisan support in this.
On a philosophical level, people who think about prison conditions and sentencing issues tend to divide themselves between retributivists and rehabilitators. Backers of retributive justice believe sentences should be punishing. Rehabilitators believe the criminal justice system should aim to restore criminals to society. I agree with both of them, and think they should agree with each other. I doubt that a convict can be properly rehabilitated unless he is also punished. To punish someone for a crime is to take his moral agency seriously. Taking that agency seriously is a sign of respect not just for the victims of crime, but the perpetrators.
America's prisons cannot possibly qualify as either punitive or rehabilitative. Instead, they are vindictive, chaotic, and degrading. A prison sentence should be the punishment in and of itself. But today, prisoners are expected to cope with unimagined and uncountable horrors. They are incentivized to join gangs. They are encouraged to commit more violence in order to avoid violence. Rape is pervasive and the threat of rape encourages prisoners to submit themselves to other violent men. There is no instance in which being plunged into barely controlled danger, or being raped, can be a just punishment....
[O]ur prison system makes a mockery of the justice system. It says that our laws are a joke since we certainly don't intend to prevent them from being broken even in institutions so closely monitored by the state itself. It tells prisoners that they are human garbage, unworthy of even the most basic respect or safety. The pervasiveness of our jokes about prison rape suggest that we believe that there are some deserving victims of violent sexual assault. There are none....
President Obama has done well to help humanize prisoners. He has emphasized that some receive unduly long or harsh punishments just for being "teenagers doing stupid things" in the absence of real help from functioning families and social institutions. His statement of empathy, that he could have ended up in prison himself, will be used cynically by his haters. It may well reek of sentimentalism even to some of his supporters. But it is a more vivid way of repeating John Bradford's statement upon seeing a group of men led to execution: "There but for the grace of God, go I."
There are all sorts of social, scientific, and even fiscal reasons to justify prison reform and sentencing reform. But the key to gaining momentum in this effort is to remind the public that America's imprisoned are human beings. They may deserve punishment for their crimes, but they do not deserve to become victims of yet more crime.
Eighth Circuit rejects "safe sex" special condition of supervised release
Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention. These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why:
At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.” In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...
The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.” During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...
[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing. By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy. The condition is not even reasonably related to the purposes that motivated the condition.
The special condition also is not reasonably related to the statutory factors set forth in § 3583(d). As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense. The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm. Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment. For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.
We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.
"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"
The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.
In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.
In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
Intriguing federal civil rights case assailing New York sex offender family restrictions
A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):
With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.
A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state. Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.
Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff. The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf. Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.
It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14. The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.
While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years. They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012. Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.
A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.
Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.
After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."
Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...
Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.
Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.
Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."
"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child." Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."
David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members. Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....
Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either.... Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."
"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.
Monday, July 20, 2015
Local coverage of compelling realities to be at heart of Aurora shooter penalty phase
Not suprisingly, the Denver Post now has especially fullsome coverage of the key issues to surround the upcoming penalty phase following the capital conviction of James Holmes last week. Here are two pieces (and their extended headlined) that caught my eye:
"Mental health will loom large in Aurora theater shooting death penalty debate: Quick verdict doesn't necessarily lead to a death sentence"
"Death penalty a complex issue for theater shooting victims' families: While some shooting survivors and relatives of victims support capital punishment for James Holmes, others are more ambivalent."
"Trustworthiness of Inmate’s Face May Sway Sentencing"
The title of this post is the headline of this helpful summary of an interesting new study from the journal Psychological Science. Here are highlights of the summary:
How trustworthy an inmate’s face appears to others seems to play a very large role in the severity of the sentence he receives, according to new research published in the journal Psychological Science.
The study shows that inmates whose faces were rated as low in trustworthiness by independent observers were more likely to have received the death sentence than inmates whose faces were seen as more trustworthy, even when the inmates were later cleared of the crime.
The findings reveal just how powerful appearances can be in guiding judgment and decision making, influencing outcomes in situations that are literally a matter of life and death.
“The American justice system is built on the idea that it is blind to all but the objective facts, as exemplified by the great lengths we go to make sure that jurors enter the courts unbiased and are protected from outside influences during their service. Of course, this ideal does not always match reality,” said Drs. John Paul Wilson and Nicholas Rule, psychological scientists at the University of Toronto and co-authors on the study. “Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone.”
Previous studies have confirmed a bias against faces perceived as untrustworthy, but much of the these have relied on study participants contemplating criminal verdicts hypothetically. For the new study, the researchers wanted to know whether this bias extended beyond the lab to a very real, and consequential, decision: whether to sentence someone to life in prison or to death.
The researchers used the photos of 371 male inmates on death row in Florida; 226 of the inmates were white, 145 were black, and all were convicted of first-degree murder. They converted the photos to gray to minimize any variations in the images and asked an online panel of 208 American adults to look at the photos and rate them on trustworthiness using a scale from one (not at all trustworthy) to eight (very trustworthy). The participants also evaluated photos of age- and race-matched inmates who had also been convicted of first-degree murder but received a sentence of life in prison instead of death. The raters did not know what sentence an inmate had received, or even that the photos were of inmates at all.
The findings showed that inmates who had received the death sentence tended to be perceived as less trustworthy than those sentenced to life in prison; in fact, the less trustworthy a face was deemed, the more likely it was that the inmate received the death sentence. This connection remained even after the researchers took various other factors into account, such as facial maturity, attractiveness, and the width-to-height ratio of the face.
Importantly, the inmates in the two groups had committed crimes that were technically equally severe, and neither sentence would have allowed for the inmates to return to society — as such, the motivation to protect society could not explain the harsher punishments consistently given to the less trustworthy-looking inmates. “Any effect of facial trustworthiness, then, seems like it would have to come from a premium in wanting to punish people who simply look less trustworthy,” the researchers said.
Even further, a follow-up study showed that the connection between perceived trustworthiness and sentencing emerged even when participants rated photos of inmates who had been sentenced but who were actually innocent and later exonerated. “This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth,” said Wilson and Rule.
The published study is available here, and its actual title is "Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes."
Sunday, July 19, 2015
Notable talk of bringing back the death penalty in two nearby US states
Two states that recently repealed their death penalty are now having folks discussing, as detailed in these two new media pieces, bringing back the ultimate punishment:
While the capital reform story in Nebraska has received broad coverage, I have not seen too much discussion on this topic from New Mexico. Here are excerpts from the capital story from the Land of Enchantment:
State leaders, including Governor Susana Martinez, discussed possible solutions to New Mexico's beleaguered justice system in the wake of an investigation about the state's 'boomerang thugs.'
KOB revealed how there are only 12 officers tasked with locating roughly 1,700 absconders and learned many criminals charged with child sex crimes have mastered the art of receiving sweetheart plea deals.
Commit a violent crime, there should be expectations -- courtrooms, fines and handcuffs. However, the system that's supposed to uphold those expectations, and keep the worst of the worst criminals locked up, has fallen apart. "So, the problem isn't throwing people in jail, or sending people to prison, it's who we send to prison," Rep. Moe Maestas, D-Albuquerque, said....
Maestas said the system is backwards when it comes to prosecuting drug crimes versus violent crimes. He said drug users are demonized, in need of help, as violent criminals go free. "To prosecute violent crimes, it is very labor intensive," Maestas said. "You have to build a relationship with the alleged victim, and that's just not being done."...
Corrections Department Secretary Gregg Marcantel is just as frustrated as the 12 people on his fugitive task force unit responsible for trying to round up the absconders. "It's a never-ending game, a revolving door," one of them said. That comes as Secretary Marcantel struggles to keep people working in the state's prisons. "I hate to admit this, but I compete with McDonald's in Santa Fe for my staff," he said. Marcantel said some prospective employees to corrections facilities in Santa Fe would prefer to flip burgers for the city's minimum wage of $10.84 rather than earn slightly more, $12.35, to be a corrections officer cadet.
KOB approached Governor Martinez, a longtime prosecutor, to hear her thoughts on a justice system that seems badly broken. Last year, she supported a pay raise for some corrections officers, which helped reduce job vacancies in one office from 50 percent to five percent. Her office said it improved the career ladder and offered promotion opportunities for probation and parole officers. Martinez also wants to beef up the fugitive task force unit to send a message to absconders....
She said lawmakers should step in for once to make laws and penalties tougher while allocating more resources to the Corrections Department on the whole. Martinez also said she wants lawmakers to reinstate the death penalty in New Mexico, which was abolished in 2009. She said, in her experience, criminal offenders feel more compelled to cooperate with investigators when confronted with it.
Saturday, July 18, 2015
"Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
The title of this post is the headline of this notable new piece in U.S. News & World Report. Here are excerpts:
Nervous federal prosecutors attempted to rally opposition Friday to criminal sentencing reform in response to President Barack Obama’s week of issuing commutations and making pro-reform speeches....
“The federal criminal justice system is not broken,” Steve Cook, the association's president, said at a lightly attended event in the nation's capital. “What a huge mistake it would be,” he said, to change sentencing laws.
Cook predicted the crime rate would rise and prosecutors would lose a tool to extract information if laws were made more lenient. He also denounced reform proponents for saying nonviolent offenders are being ensnared by tough Clinton-era drug laws. “They have misled the public every time they say, 'We’re talking about nonviolent drug offenders,'” he said. “Drug trafficking is inherently violent. … If you’re not willing to engage in violence [then] you will be out of the business quickly, or worse.”
Cook said the small number of inmates whose sentences have been shortened by Obama – the president has issued 76 drug crime commutations total, 46 of them this week – shows there’s not much of a problem with people serving unreasonably long sentences.
Rather than focus on reducing sentences, he said, the government should consider building more prison facilities. “Do I think it would be a good investment to build more [prisons]? Yeah, no question about it!” he said....
Molly Gill, government affairs counsel at the advocacy group Families Against Mandatory Minimums, says Cook’s assertion the crime rate would rise after sentencing reform is a “demonstrably false claim and a shameful scare tactic.” In Michigan, New York and other states, she says, crime rates did not spike after mandatory minimums were repealed....
Cook, who was joined by two other federal prosecutors, made much of his speech Friday about societal ills associated with drug addiction, from babies going through withdrawal to people stealing from their families and dying from overdoses and car accidents. “There’s a pyramid of individuals who are affected by [drug dealers],” he said. “Many view [drug trafficking] as more serious than murder.”
He declined to say if state-legal recreational marijuana businesses and regulators in Colorado and Washington state should face marijuana-related mandatory minimums for breaking federal law.
Cook’s colleagues did not speak at the news conference. He described the event as the first of its kind by the group, which claims to represent 1,500 assistant U.S. attorneys, about 30 percent of the total.
Former President Bill Clinton, one of the leaders responsible for establishing inflexible penalties, this week said doing so led to the imprisonment of a lot of "minor actors for way too long." The association views his reversal as “misinformed,” Cook said: “We think he was right before.”
Is Prez Obama truly "close" to opposing the death penalty?
The question in the title of this of this post is prompted by this recent Washington Post Wonkblog posting, which gets started this way:
A long-time associate and mentor to President Obama says the president is "close" to opposing the death penalty but not quite there yet -- and needs to be pushed to do it.
"He's not there yet, but he's close, and needs some help," said Charles J. Ogletree, Jr., a law professor at Harvard University and prominent death penalty opponent who taught the president and First Lady Michelle Obama when both were students there. The legal scholar said he was planning on meeting with his former student next month and would confront him about the issue then.
As Obama has increasingly confronted racial disparities in the criminal justice system and in American society in in his second term -- including on Tuesday before the National Association for the Advancement of Colored People -- Obama has committed to doing more to address these issues in his final year-and-a-half. This week alone, he commuted the sentences of more than 40 low-level offenders, and is visiting a prison in Oklahoma today, becoming the first president to visit a federal penitentiary.
Obama, who has said he supports executions in some circumstances but raised concerns about the application of capital punishment, has not yet focused in this new push on racial disparities in capital trials -- the most serious cases before any criminal court. Now, just as he publicly changed his opinions on other major social issues in which public opinion changed, like gay marriage, some have wondered whether the president will change his perspective. As the charts below show, support for the death penalty, for decades strong in the United States, has been declining in recent years, just as support for gay marriage has increased.
Ogletree predicted that the president will eventually have no choice but to oppose the death penalty, confronted with the data on racial disparities in capital punishment, as well as on the costs of litigating capital cases and on the number of defendants who are eventually exonerated. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him," Ogletree said. "As a citizen, he can have an enormous amount of influence."