Wednesday, March 14, 2018

Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution

Images (3)As detailed in this new CNN piece, headlined "Oklahoma plans to use new execution method," the Sooners are soon to be trying a novel execution protocol. Here are the details:

Unable to obtain drugs to use for its lethal injections, Oklahoma will use inert gas inhalation as the primary method for death penalty executions once a protocol is developed and finalized, the state's attorney general announced Wednesday. Oklahoma is the first state to adopt this method.

"As you know, in Oklahoma, a bill that was signed back in 2015 by the governor states that if lethal injection is held unconstitutional or is unavailable, an execution shall be carried out by nitrogen hypoxia," Attorney General Mike Hunter said. "We are exercising that option." Nitrogen is one of several inert gases that can cause hypoxia, an oxygen deficiency that causes death.

Oklahoma Department of Corrections Director Joe M. Allbaugh said his office will prepare the legal documents within the next 90 to 120 days and, if that's acceptable, the attorney general will move forward with the protocol. Hunter said the state is "at the very beginning of this process ... and will provide updates as they become available."

Currently, 49 people sit on death row in Oklahoma; 16 have exhausted their ability to appeal their cases, Allbaugh said. The state has struggled to find legally obtainable lethal injection drugs, he said. It previously used a three-drug combination: an anesthetic (either sodium thiopental, pentobarbital or midazolam), a paralytic agent (pancuronium bromide) and a heart-stopping agent to cause death (potassium chloride), according to the nonprofit Death Penalty Information Center....

The bipartisan Oklahoma Death Penalty Review Commission issued a study of the death penalty in the state on April 25. The report concluded that the moratorium should remain in place until significant reforms to the death penalty process are made, and recommended a one-drug barbiturate execution protocol.

But Hunter said inert gas inhalation is used in countries that have legalized assisted suicide. A 2010 Journal of Medical Ethics study, based on experiments performed by Swiss organization Dignitas, found that the dying process of oxygen deprivation caused by an inert gas is "potentially quick and appears painless." "It also bypasses the prescribing role of physicians, effectively demedicalizing assisted suicide," the researchers wrote.

Hunter said that "using an (inert gas inhalation) will be effective, simple to administer, easy to obtain and requires no complex medical procedures." "Research has shown that individuals exposed to an excessive amount of inert gas experience fatigue, dizziness, perhaps a headache, loss of breath and eventual loss of consciousness," he said, citing the US Air Force Flight Surgeon's Guide, which looks at cases of pilots breathing excessive amounts of inert gas.

Hunter said that people who die by inhalation of inert gases are dead within just a few minutes. The method is "safest, best and most effective," he said.

By contrast, the American Veterinary Medical Association's Guidelines for the Euthanasia of Animals recommend the use of nitrogen for chickens, turkeys and pigs but say it's unacceptable for other mammals. "These gases create an anoxic environment that is distressing for some species," the authors say.

Oklahoma re-enacted the death penalty in 1973 and, since 1976, has performed 112 executions. Hunter noted that an overwhelming majority of the Oklahoma electorate voted to amend the Constitution and guarantee the state's power to impose capital punishment two years ago.

March 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11)

Interesting data from the US Courts on federal criminal justice caseloads in FY 2017

The Administrative Office of the U.S. Courts yesterday released here is Annual Report on "Judicial Business 2017" providing lots of statistics on the work of the federal Judiciary for the fiscal year ending September 30, 2017. Here are some criminal justice-related items from data pages here and here that caught my eye:

This year, filings in the U.S. courts of appeals declined 16 percent to 50,506. Total filings in the U.S. district courts decreased 7 percent to 344,787 as civil case filings dropped 8 percent to 267,769, although filings for criminal defendants remained relatively stable at 77,018....

Filings in the regional courts of appeals, which rose 15 percent the previous year, dropped 16 percent to 50,506 in 2017. Filings by pro se litigants, which accounted for 50 percent of new cases, went down 20 percent. Civil appeals grew 1 percent. Criminal appeals fell 14 percent.

Filings for criminal defendants (including those transferred from other districts) remained stable, decreasing less than 1 percent to 77,018.

The biggest numeric decline was in filings for defendants charged with property offenses, which fell 6 percent to 10,115 filings and accounted for 13 percent of total criminal filings.  Filings for defendants charged with fraud, which constituted 9 percent of total filings and 71 percent of property offense filings, dropped 5 percent to 7,165.  Fraud filings related to identification documents and information, which are often associated with immigration crimes, decreased 16 percent to 639.

Drug crimes remained the offenses prosecuted most frequently in the U.S. district courts, constituting 32 percent of all defendant filings. Filings for defendants charged with crimes related to marijuana decreased 19 percent to 4,181.  Filings for non-marijuana defendants rose 4 percent to 20,175.  Filings related to the sale, distribution, or dispensing of illegal drugs decreased 17 percent to 2,249 for marijuana and rose 1 percent to 17,560 for all other drugs.

Criminal filings for defendants charged with immigration offenses fell 2 percent to 20,438 and accounted for 27 percent of criminal filings. This was the lowest total since 2007. Defendants charged with improper reentry by an alien decreased 3 percent to 16,554, and those charged with improper entry by an alien dropped 12 percent to 172.  Immigration filings in the five southwestern border districts declined 7 percent to 15,638 and constituted 77 percent of national immigration defendant filings, compared to 81 percent in 2016.  Filings fell 32 percent in the District of New Mexico, 16 percent in the Southern District of Texas, and 5 percent in the District of Arizona, but rose 51 percent in the Southern District of California and 6 percent in the Western District of Texas.

General offense defendants declined 5 percent and amounted to 2 percent of total criminal filings. Reductions also occurred in filings related to violent offenses (down 1 percent) and sex offenses (also down 1 percent); each of these categories constituted 4 percent or less of total criminal filings.

Filings for defendants prosecuted for firearms and explosives offenses rose 11 percent to 9,672 and represented 13 percent of total criminal filings. Filings involving justice system offenses, which increased 5 percent, constituted 1 percent of total criminal filings. Defendants charged with regulatory offenses grew 3 percent and accounted for 2 percent of total criminal filings. Traffic offense filings increased 2 percent to 2,292 and accounted for 3 percent of total criminal filings.

Because FY 2017 ending in Sept 2017 really represents a big transition year at the executive branch, it is way too early to draw too much from these data concerning the patterns of prosecution we might expect during the Trump years. But these data present an interesting baseline from which to look for notable patterns that might develop in the years ahead.

March 14, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Data on sentencing | Permalink | Comments (1)

Tuesday, March 13, 2018

"Principles of Risk Assessment: Sentencing and Policing"

The title of this post is the title of this new essay by Christopher Slobogin recently posted to SSRN. Here is the abstract:

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making.  To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs).  RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged.  But RAIs bring with them their own set of controversies.

In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases.  After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing.  While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well.

March 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (1)

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs

As noted in this prior post, last year the United States Sentencing Commission had a public hearing exploring alternatives to incarceration programs and synthetic drugs.  This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses at that prior 2017 heading, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

Tomorrow, as detailed on this USSC webpage, the United States Sentencing Commission in scheduled to conduct another public hearing on these topics (in part because the USSC never formally moved forward with any guidelines amendments on these topics because of an incomplete membership). As the new hearing page details, "the purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Synthetic Drugs and First Offenders/Alternatives to Incarceration."

March 13, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Monday, March 12, 2018

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

March 12, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

March madness + spring break = light blogging

A host of great distractions this Spring Break week will likely mean  more time away from the computer and thus less blogging in this space.  The Murphy’s Law of blogging would suggest that we will get a lot of blog-worthy sentencing developments while I am away, but perhaps there will be a relative calm in the sentencing waters before SCOTUS gets back in action next week.  

March 12, 2018 in On blogging | Permalink | Comments (2)

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

The title of this post is the title of this notable new Issue Brief from Pew with a message summarized by the document's subtitle: "Data show no relationship between prison terms and drug misuse." Here is the document's overview:

Nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980.  These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

As the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems.  To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies.  The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings — which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017 — reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.  The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

March 11, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

"'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is its abstract:

Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal clemency process. His clemency initiative, however, was hardly the unqualified success that he claims.

Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014.  That would have allowed the thousands of clemency decisions he made to be handled at a more reasonable pace and probably more accurately.  He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender.  Finally, he should have reformed the clear structural defect in the federal clemency process.  The Department of Justice controls the clemency application process even though, as the agency that prosecuted every clemency applicant, the department suffers from an actual or apparent conflict of interest.  In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

March 11, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, March 10, 2018

Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers

In reported in prior posts here and here, Prez Trump has reportedly talked privately about how drug dealers are as bad as serial killers and has talked publicly about using the "ultimate penalty" to address drug problems. Now according to this new Washington Post article, headlined "Trump administration studies seeking the death penalty for drug dealers," these musings by President Trump are now a policy proposal being seriously examined by the administration:

The Trump administration is studying new policy that could allow prosecutors to seek the death penalty for drug dealers, according to people with knowledge of the discussions, a sign that the White House wants to make a strong statement in addressing the opioid crisis.

President Trump last week suggested executing drug dealers as a way to make a dent in opioid addiction. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

People familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying potential policy changes and that a final announcement could come within weeks. The White House has said one approach it might take is to make trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. White House officials also are studying tougher noncapital penalties for large-scale dealers.

Trump said last week that the administration would soon roll out unspecified “strong” policies on opioids. White House officials said Trump has privately expressed interest in Singapore’s policy of executing drug dealers. “Some countries have a very tough penalty, the ultimate penalty, and they have much less of a drug problem than we do,” Trump said during an appearance at a White House summit on opioids last week.

Trump also has endorsed Philippine President Rodrigo Duterte’s approach to the issue; Duterte’s “drug war” has led to the deaths of thousands of people by extrajudicial police killings. Last year, Trump praised Duterte in a phone call for doing an “unbelievable job on the drug problem,” according to the New York Times. Kellyanne Conway, counselor to the president, is leading much of the work on opioids for the White House. Singaporean representatives have briefed senior White House officials on their country’s drug policies, which include treatment and education, but also the death penalty, and they provided a PowerPoint presentation on that country’s laws.

Singapore’s model is more in line with the administration’s goals for drug policy than some other countries, a senior administration official said. “That is seen as the holistic approach that approximates what this White House is trying to do,” a senior administration official said....

Federal law currently allows for the death penalty to be applied in four types of drug-related cases, according to the Death Penalty Information Center: murder committed during a drug-related drive-by shooting, murder committed with the use of a firearm during a drug trafficking crime, murder related to drug trafficking and the death of a law enforcement officer that relates to drugs.

Peter H. Meyers, a professor at the George Washington University School of Law, said he doesn’t agree with the idea of adding more capital crimes for drug dealers, but he said it could be a legal approach: “It very likely would be constitutional if they want to do it.”

The administration’s directives come as prosecutors nationwide are cracking down on higher-level drug dealers and law enforcement officials are looking at increased penalties for fentanyl trafficking and dealing. But at the same time, public health officials — including those in the Trump administration — and many in law enforcement are emphasizing treatment rather than punitive measures for low-level users and those addicted to drugs.

Attorney General Jeff Sessions has directed federal prosecutors to pursue the most severe penalties for drug offenses.  The Department of Justice said last year it will aggressively prosecute traffickers of any fentanyl-related substance.

If (when?) we see a serious formal death penalty proposal for drug dealers, I will have a lot more to say on the topic. For now, I will be content with three "hot takes" (with number 3 to get a lot more attention if this discourse continues):

1. It is not at all clear that death sentences for drug dealers, even for those whose drugs cause multiple deaths, would be constitutional; it is entirely clear that the issue would be litigated extensively and would have to be definitively decided by the US Supreme Court.

2. If Prez Trump is truly interested in "executing drug dealers" rather than just sending them to death row, he needs to get his Justice Department to get serious about trying to actually execute some of the five dozens murderers languishing  on federal death row (some of whom have been on federal death row for two decades or longer).  

3. If the White House (and/or Attorney General Sessions) is seriously interested in a legislative proposal to make the "worst of the worst" drug dealers eligible for the death penalty, I would seriously urge Senate Judiciary Chair Chuck Grassley to consider adding the proposal to his Sentencing Reform and Corrections Act as part of an effort to get the White House and AG Sessions to support that bill.  Even if drafted broadly, any federal "death penalty for drug dealers" law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year.  And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.

Prior related posts:

UPDATE: Not long after this posting, Prez Trump gave a speech in Pennsylvania that, as reported in this new Washington Post piece, covered this ground and received a positive response for the audience:

President Trump on Saturday again called for enacting the death penalty for drug dealers during a rally meant to bolster a struggling GOP candidate for a U.S. House seat here. During the campaign event in this conservative western Pennsylvania district, the president also veered off into a list of other topics, including North Korea, his distaste for the news media and his own election victory 16 months ago.

Trump said that allowing prosecutors to seek the death penalty for drug dealers — an idea he said he got from Chinese President Xi Jinping — is “a discussion we have to start thinking about. I don’t know if this country’s ready for it.”

“Do you think the drug dealers who kill thousands of people during their lifetime, do you think they care who’s on a blue-ribbon committee?” Trump asked. “The only way to solve the drug problem is through toughness. When you catch a drug dealer, you’ve got to put him away for a long time.”

It was not the first time Trump had suggested executing drug dealers. Earlier this month, he described it as a way to fight the opioid epidemic. And on Friday, The Washington Post reported that the Trump administration was considering policy changes to allow prosecutors to seek the death penalty.

But on Saturday his call for executing drug dealers got some of the most enthusiastic cheers of the night. As Trump spoke about policies on the issue in China and Singapore, dozens of people nodded their heads in agreement. “We love Trump,” one man yelled. A woman shouted: “Pass it!”

March 10, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (6)

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room

I am pleased to report that President Donald Trump is continuing to make use of his clemency power during the first part of his first term.  A relatively high-profile case is yet again the subject of his activity, as reported in this Politico article headlined "Trump pardons sailor in submarine photos case." Here are the details:

President Donald Trump has pardoned a Navy submariner sentenced to prison for taking photos inside the classified engine room of a nuclear submarine, the White House announced on Friday.

Petty Officer First Class Kristian Saucier pleaded guilty in May 2016 to two felony counts, one for unlawful retention of national defense information and another for obstruction of justice, for taking cellphone pictures inside the Navy vessel and later destroying his own equipment upon learning he was under investigation.

“The president has pardoned Kristian Saucier, a Navy submariner,” White House press secretary Sarah Huckabee Sanders announced at a briefing with reporters. The Justice Department later confirmed the move. Sanders added that “the president is appreciative of Mr. Saucier's service to the country.”

The move marked just the second pardon Trump has granted since entering office, with the first extended in August to Joe Arpaio, the former Arizona sheriff who was convicted of criminal contempt of court in a case involving his tactics targeting undocumented immigrants.

Saucier was sentenced to 12 months in prison for mishandling classified information. Critics have cited the episode to allege a double standard in how low- and high-ranking U.S. officials handle sensitive material. The president brought the case back into public view in January, when he compared the treatment of Saucier with that of his former electoral opponent Hillary Clinton and her top campaign officials....

Prosecutors had sought a much steeper sentence for the former Navy machinist, calling for him to face six years in prison, but the judge gave a more lenient sentence, a point the White House highlighted in announcing his pardon. “The sentencing judge found that Mr. Saucier’s offense stands in contrast to his commendable military service,” Sanders noted.

Though I would like to see Prez Trump issuing many more clemency grants, particularly in lower-profile cases, I remain quite pleased that Prez Trump is continued to use his clemency powers more during his first three years in office than did the last three presidents combined.

Related post on prior clemency grants:

March 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Friday, March 9, 2018

Federal judges fives "Pharma Bro" Martin Shkreli (waaaaaay-below-guideline) sentence of 7 years

As reported in this AP piece, "Martin Shrkeli, the smirking “Pharma Bro” vilified for jacking up the price of a lifesaving drug, was sentenced Friday to seven years in prison for defrauding investors in two failed hedge funds."  Here is more on what seems like a pretty interesting sentencing hearing:

The self-promoting pharmaceutical executive notorious for trolling critics online was convicted in a securities fraud case last year unconnected to the price increase dispute.

Shkreli, his cocky persona nowhere to be found, cried as he told U.S. District Judge Kiyo Matsumoto he made many mistakes and apologized to investors. “I want the people who came her today to support me to understand one thing, the only person to blame for me being here today is me,” he said. “I took down Martin Shkreli.” He said that he hopes to make amends and learn from his mistakes and apologized to his investors. “I am terribly sorry I lost your trust,” he said. “You deserve far better.”

The judge insisted that the punishment was not about Shkreli’s online antics or raising the cost of the drug. “This case is not about Mr. Shkreli’s self-cultivated public persona ... nor his controversial statements about politics or culture,” the judge said, calling his crimes serious.  He was also fined $75,000 and received credit for the roughly six months he has been in prison.  The judge ruled earlier this week that Shkreli would have to forfeit more than $7.3 million in a brokerage account and personal assets including his one-of-a-kind Wu-Tang Clan album that he boasted he bought for $2 million.  The judge said the property would not be seized until Shkreli had a chance to appeal.

Prosecutors argued that the 34-year-old was a master manipulator who conned wealthy investors and deserved 15 years in prison.  His lawyers said he was a misunderstood eccentric who used unconventional means to make those same investors even wealthier.  Attorney Benjamin Brafman told Matsumoto Friday that he sometimes wants to hug Shkreli and sometimes wants to punch him in the face , but he said his outspokenness shouldn’t be held against him.  He said he deserved a sentence of 18 months or less because the investors got their money back and more from stock he gave them in a successful drug company.”...

Before sentencing him, the judge said that it was up to Congress to fix the issue of the HIV price-hike.  And she spoke about how his family and friends “state, almost universally, that he is kind and misunderstood” and willing to help others in need. S he said it was clear he is a “tremendously gifted individual who has the capacity for kindness.”

She quoted from letters talking about generous acts like counseling a rape victim, teaching inmates math and chess, and funding family members.  The defense had asked the judge to consider the letters in its case for leniency, including professionals he worked with who vouched for his credentials as a self-made contributor to pharmaceutical advances.

Other testimonials were as quirky as the defendant himself.  One woman described how she became an avid follower of Shkreli’s social media commentary about science, the pharmaceutical industry, but mostly, about himself.  She suggested that those who were annoyed by it were missing the point.  “I really appreciate the social media output, which I see on par with some form of performance art,” she wrote.

Another supporter said Shkreli’s soft side was demonstrated when he adopted a cat from a shelter — named Trashy — that became a fixture on his livestreams.  Another letter was from a man who said he met Shkreli while driving a cab and expressed his appreciation at how he ended up giving him an internship at one of his drug companies.

In court filings, prosecutors argued that Shkreli’s remorse about misleading his investors was not to be believed. “At its core, this case is about Shkreli’s deception of people who trusted him,” they wrote.

Prior related posts:

March 9, 2018 in Booker in district courts, White-collar sentencing | Permalink | Comments (11)

"The Reintegrative State"

The title of this post is the title of this timely paper authored by Joy Radice that has just been posted to SSRN.  Here is its abstract

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them.  A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families.  Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism.  Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance.  States have responded.  By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record.  Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship.  The stigma of a conviction follows them for a lifetime, even for the most minor crimes.

This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State.  It makes four contributions to the growing literature on collateral consequences and criminal records.  First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.  Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes.  Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records.  Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status.  To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release.  The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

March 9, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

"Can We Wait 75 Years to Cut the Prison Population in Half?"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it starts and concludes:

The U.S. prison population grew by more than 600% between 1973 and 2009 — from 200,000 people to 1.6 million.  Tough-on-crime policies expanded the number of imprisoned people even while crime rates plunged to 40% below their levels in the 1990s.  In recent years, policymakers and criminal justice professionals have implemented reforms to correct the punitive excesses of the past.  By yearend 2016 the number of people held in U.S. prisons had declined by 6% since a 2009 peak, and crime rates have continued to decline.

But the overall impact of reforms has been quite modest. With 1.5 million people in prison in 2016, the prison population remains larger than the total population of 11 states.3 If states and the federal government maintain their recent pace of decarceration, it will take 75 years — until 2093 — to cut the U.S. prison population by 50%.  Expediting the end of mass incarceration will require accelerating the end of the Drug War and scaling back sentences for serious crimes....

Just as mass incarceration was developed primarily as a result of changes in policy, not crime rates, so too has decarceration reflected changes in both policy and practice.  These have included such measures as drug policy sentencing reforms, reduced admissions to prison for technical parole violations, and diversion options for persons convicted of lower-level property and drug crimes.

The movement to end mass incarceration not only faces political reluctance to meaningfully reduce the U.S. prison population, it has also had to address renewed calls to further expand the prison population, including: increasing prison terms for immigration law violations, reversals of Obama-era reforms in federal sentencing, and punitive responses to the opioid crisis.  While defending the progress made in recent years, we must also strive for criminal justice reforms bold enough to tackle mass incarceration.

March 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, March 8, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Highlighting that registries are not only for sex offenders in many states

This new Marshall Project piece, headlined "Convicted of a Drug Crime, Registered with Sex Offenders," focuses on the broad reach of the offender registry employed in Kansas and debate over its reform.  I recommend the piece in full, and here are excerpts from the piece:

Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts.  Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder.  Tennessee added animal abuse.  Utah added white collar crimes.  A few states considered but abandoned plans for hate crime and domestic abuse registries.  At least five states publicly display methamphetamine producers.

But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders.  As deaths from opioids rise, some public officials have focused on addiction as a public health issue.  Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals.  At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.

The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry.  “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.

The Kansas law, first passed in 2007, now requires anyone convicted of manufacturing, distributing, or possessing “with intent to distribute” drugs other than marijuana to remain on the registry for a minimum of 15 years (and a maximum of life, for multiple convictions.)  During that time, they must appear at their county sheriff’s office four times a year, as well as any time they move, get a new job, email address, vehicle, or tattoo.  Most of this information is online, searchable by name or neighborhood, and members of the public can sign up to be emailed when an offender moves in or starts work near them.  (In 2013, when businesses expressed fear of vigilantes targeting registrants at work, lawmakers removed employment addresses from the website.)  During the quarterly sheriff visits, they must pay $20 and have their picture retaken; if they work or go to school in another county, they must register there as well.  “Any time I get a new job, I have to say, ‘Sorry, I need time off’ in the first 72 hours,” said Juston Kerns, 35, arrested for involvement in the sale of methamphetamine in 2014.

A few years ago, Wesley Harden — convicted in 2008 of selling methamphetamine after he led police on a high-speed chase — was arrested and charged with “failure to register.” Harden, 35, showed up as required, but he’d recently failed to report a jet ski as a new vehicle.  He doesn’t know for sure how the authorities discovered the jet ski, but thinks it has to do with pictures he posted on Facebook.  Harden received three years of probation, but the punishment for failing to register can include prison time, even if the original conviction was handled without incarceration.  Last year, 38 people were sent to prison over their failure to register for drug crimes, and the Kansas Sentencing Commission estimates that removing drug crimes would save the state roughly a million dollars each year....

Many law enforcement officials support the registry on public safety grounds. “People who sell drugs, there tends to be dangerous activity that takes place around their residence,” said Ed Klumpp, a retired Topeka police chief who lobbies for law enforcement at the legislature and opposes the current bill. “If you’re raising children in the neighborhood, it’s good to know there is someone down the street convicted of selling or manufacturing, so maybe they won’t send the kids to get candy there on Halloween.”

In recent years, lawyers around the country have argued to increasing success that registration requirements are unconstitutional.  One county in Colorado recently took its registry offline after a judge found it to be cruel and unusual punishment. California recently passed a law allowing sex offenders to be removed from the registry after 10 to 20 years if they have not committed another serious or violent felony or sex crime.

But beyond the legal questions are practical ones.  Little is known about whether registries prevent crime, and University of Michigan law professor J.J. Prescott has speculated that they may even facilitate crimes that involve buyers and sellers.  “Imagine I move to a new city and I don't know where to find drugs,” he said.  “Oh, I can just look up people on the registry!”

Evidence to support this theory is scant — and law enforcement leaders in Kansas say they have not encountered the problem — but at the February legislative hearing, Scott Schultz, the executive director of the Kansas Sentencing Commission, said he had learned of one registrant who found people at her door, looking to buy drugs.  They’d seen her address online. “I’ve called it, tongue in cheek, state-sponsored drug-dealing,” Schultz said, describing the registry as an “online shopping portal for meth and other drugs.”

March 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

March 8, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (6)

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry

Images (8)As reported in this Axios piece, "President Trump on Wednesday launched, by executive order, the Federal Interagency Council on Crime Prevention and Improving Reentry." Here is more:

The president enacted the council with the aim of reducing crime while looking for ways to "provide those who have engaged in criminal activity with greater opportunities to lead productive lives."...

“We applaud President Trump for following through on his stated commitment to reducing crime, reforming our prisons and rehabilitating individuals who are hungry for a second chance,” [said] Mark Holden, general counsel at Koch Industries who recently launched the Safe Streets and Second Chances prison reform initiative, told Axios. Holden said he is particularly encouraged that Jared Kushner will be one of the co-chairs.

While she thinks this is a good step from the administration, Inimai Chettiar, director of the justice program at the Brennan Center for Justice told Axios, "there can be no real criminal justice reform without reducing the number of people entering prison. The President and Attorney General are attempting to kill bipartisan sentencing reform in Congress, and offering incremental reentry reforms instead."...

The executive order calls for "mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring," for inmates. "Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs." The order asks for a report from the council within 90 days that will outline a timeline for ways to reduce crime and recidivism.

The council will be co-chaired by Jared Kushner, Attorney General Jeff Sessions and the Assistant to the President of Domestic Policy Andrew Bremberg.  The council will include the heads of: The Department of the Treasury, the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Education, the Department of Veterans Affairs, the Office of Management and Budget, and the Office of National Drug Control Policy.

The executive order asks for ways to reduce recidivism and better re-entry for those coming out of the criminal justice system, but does not suggest looking at changes to sentencing guidelines. 

The full Executive Order creating the Federal Interagency Council on Crime Prevention and Improving Reentry can be accessed at this link. The first section of the EO provides as follows:

Section 1. Purpose. The Federal Government must reduce crime, enhance public safety, and increase opportunity, thereby improving the lives of all Americans. In 2016, the violent crime rate in the United States increased by 3.4 percent, the largest single-year increase since 1991. Additionally, in 2016, there were more than 17,000 murders and nonnegligent manslaughters in the United States, a more than 20 percent increase in just 2 years. The Department of Justice, alongside State, local, and tribal law enforcement, has focused its efforts on the most violent criminals. Preliminary statistics indicate that, in the last year, the increase in the murder rate slowed and the violent crime rate decreased.

To further improve public safety, we should aim not only to prevent crime in the first place, but also to provide those who have engaged in criminal activity with greater opportunities to lead productive lives.  The Federal Government can assist in breaking this cycle of crime through a comprehensive strategy that addresses a range of issues, including mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring. Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs.  These efforts will lower recidivism rates, ease incarcerated individuals’ reentry into the community, reduce future incarceration costs, and promote positive social and economic outcomes.

I am not going to get too excited by this new Council until I see what kind of "recommendations for evidence-based programmatic and other reforms" appear in the various reports it is tasked to issue. But this order provides still more reason to believe that the Trump White House wants to (and wants to be able to claim) it is doing something productive in the arena of criminal justice reform.

Notably, President Barack Obama formally acted in a fairly similar manner via this Presidential Memorandum in late April 2016 discussing "Federal Interagency Reentry Council." That memorandum noted that "in 2011, the Attorney General formed the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to the rehabilitation and reintegration of individuals returning to their communities from prisons and jails" and said the 2016 memorandum was being issued to "ensure that the Federal Government continues the important work of this council and builds on its successes." This new Executive Order by Prez Trump formerly states that it revokes Prez Obama's 2016 memorandum, but in substance it looks quite similar.

March 8, 2018 in Collateral consequences, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, March 7, 2018

"Plea Bargaining: From Patent Unfairness to Transparent Justice"

The title of this post is the title of this new paper now appearing on SSRN authored by Mirko Bagaric, Julie Clarke and William Rininger. Here is its abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  It imprisons more of its citizens than any other country — and by a considerable margin.  It is now widely acknowledged that there is no community dividend stemming from an overly punitive sentencing system.  Over-incarceration does not make the community safer and diverts billions of dollars annually from productive social services, such as health and education.  Lawmakers have failed to find overarching solutions to this crisis. This Article proposes to change that paradigm by offering concrete reforms to a key failing of the sentencing system.

Emerging evidence suggests that one of the main reasons for the mass incarceration crisis relates to the dysfunctional plea bargaining process, in which the prosecution has the stronger negotiating power and often uses it to press for harsh penalties.  The reality is that most defendants in the United States do not receive a trial, let alone a fair one.  Their fate is determined by a negotiation with a prosecutor. More than ninety percent of all criminal matters in the United States are finalized in this manner.   There is a wide-ranging consensus that this process is flawed. It results in a large portion of defendants receiving harsher penalties than is commensurate with the seriousness of their offense. Sometimes it also leads to defendants who are innocent pleading guilty, in order to avoid the uncertainty of a trial.  The process is especially unfair on minority groups, with evidence establishing that African Americans in particular, receive harsher penalties than similarly situated white defendants.

This Article proposes reforms to the plea bargaining process that will demonstrably and profoundly reshape the framework for plea negotiations.  The central plank of the proposed reform is to shift more discretion and power from prosecutors, who invariably agitate for tougher sentences, into the hands of (impartial) sentencing judges.  This can be achieved by conferring a discount to offenders who plead guilty.  The size of the discount should be up to thirty percent.  A similar system already operates effectively in Australia.  In addition to this, defendants who plead guilty in circumstances when there is a weak prosecution case (and who are tenably innocent) should receive a discount of up to seventy-five percent.  This proposal would considerably reduce incarceration numbers in a way that does not compromise community safety and preserves the cost-saving benefits of the current plea bargaining process.  The reform will also reduce the discriminatory operation of the sentencing system against offenders who come from socially and economically deprived backgrounds.

March 7, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Another sad account of how US Bureau of Prisons administers compassionate release program

The Marshall Project and the New York Times have this lengthy new piece about the ugly administration of the federal compassionate release program by the US Bureau of Prisons. At the Marshall Project, the piece has this full headline summarizing its content: "Old, Sick and Dying in Shackles: 'Compassionate release' has bipartisan support as a way to reduce the federal prison population and save taxpayer money. New data shows that it’s rarely used." Here are excerpts:

Congress created compassionate release as a way to free certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer.  Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing, elderly inmates who pose little risk to public safety.  But despite urging from lawmakers of both parties, numerous advocacy groups and even the Bureau of Prisons’ own watchdog, prison officials use it only sparingly.

Officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times.  From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

Advocates for the program say the bureau, which oversees roughly 183,000 inmates, denies thousands of deserving applicants. About half of those who died after applying were convicted of nonviolent fraud or drug crimes. “It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said Senator Brian Schatz of Hawaii, a Democrat. “The Bureau of Prisons has the theoretical authority to do this, but they basically do none of it.”

Case files show that prison officials reject many prisoners’ applications on the grounds that they pose a risk to public safety or that their crime was too serious to justify early release. In 2013, an inspector general reported that nearly 60 percent of inmates were denied based on the severity of their offense or criminal history. The United States Sentencing Commission has said that such considerations are better left to judges — but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.

Late last month, Schatz introduced legislation — co-sponsored with Senators Mike Lee of Utah, a Republican, and Patrick Leahy of Vermont, a Democrat — that would let prisoners petition the courts directly if the bureau denies or delays their requests.

Many are turned down for not meeting medical requirements. [Kevin] Zeich, who was serving 27 years for dealing methamphetamine, requested compassionate release three times, but was repeatedly told he was not sick enough. On his fourth try, his daughter, Kimberly Heraldez, finally received a phone call in March 2016 saying her father would soon be on a plane, headed to her home in California. Early the next morning, she was awakened by another call. Her father had died....

Compassionate release dates back to an overhaul of federal sentencing laws in the 1980s. While abolishing federal parole, Congress supplied a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances. But a court could do so only if the Bureau of Prisons filed a motion on an inmate’s behalf. For years, the agency approved only prisoners who were near death or completely debilitated. While nonmedical releases were permitted, an inspector general report found in 2013, not a single one was approved over a six-year period.

The report said the program should be expanded beyond terminal illness cases and used more frequently as a low-risk way to reduce overcrowding and health care spending. The Bureau of Prisons widened the criteria to explicitly include inmates over 65 and those who are the sole possible caregiver for a family member.  Then Attorney General Eric H. Holder, Jr., promoted the changes as part of his “Smart on Crime” initiative to “use our limited resources to house those who pose the greatest threat.

”But the bureau, which is part of the Justice Department, has yet to fully embrace those changes. Of those inmates who have applied for nonmedical reasons, 2 percent (50 cases) have been approved since 2013, according to an analysis of federal prison data.  And although overall approval numbers increased slightly between 2013 and 2015, they have since fallen.

At a 2016 sentencing commission hearing, Bureau of Prisons officials said they believed the program should not be used to reduce overcrowding.  And even the principal deputy assistant to Holder, Jonathan Wroblewski, said the program was not an “appropriate vehicle for a broad reduction” in the prison population.  “Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,” he said.

After the hearing, the commission released new guidelines encouraging prison officials to determine only whether inmates fit the criteria for release — that is, if they are old enough, sick or disabled enough, or if they are the sole possible caregiver for someone on the outside. Whether the prisoner poses a risk to the public should be left to a judge to decide, the commission said.

Mark Inch, who was appointed director of the Bureau of Prisons by Attorney General Jeff Sessions last August, has made no public statements about the program. The bureau declined to make Inch available for an interview and did not respond to emailed questions.

As this article indicates, there are bills now pending in Congress that would in various ways address deficiencies in the current compassionate release mechanisms. This is on of many reasons I am hopeful (but not optimistic) that folks on both sides of the aisle in Congress will try hard in the coming weeks to get at least some form of prison reform legislation to Prez Trump's desk. A revised and expanded compassionate release mechanism could and should help hundreds, perhaps thousands, of federal prisoners, particularly those who have likely already served a very long time in federal prison and who pose little or no risk to public safety.

A few recent of many prior related posts:

March 7, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"

The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:

The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014.  In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences.  The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis.  Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option.  Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states.  This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.

Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences.  This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions.  But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)

• Did sentencers become more reluctant to return death sentences? (no)

• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)

• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)

• Did robbery during a murder became a less powerful aggravator? (yes)

• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)

• Did death sentences become less common in multiple perpetrator cases? (yes)

• Did low population counties increasingly drop out of death sentencing? (yes)

• Did low revenue counties increasingly drop out of death sentencing? (no) and

• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, March 6, 2018

Noting the focus on prosecutor elections as new front in criminal justice reform efforts

This new McClatchy article, headlined "Progressive groups investing in district attorney races as path to criminal justice reform," highlights the new focus on DA elections within the broader modern criminal justice reform movement. Here is how the piece starts:

The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.

Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice.  More than 1,000 local prosecutors are up for election in November, according to the group. “We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.  But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas.  A former state district judge, Frizell has called for special prosecutors to investigate shootings by police.  She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.

An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.

March 6, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.

I fear I won't be able to find all the time I would like to churn over all the notable data in these reports.  But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):

The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017.  To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings.  Select highlights from FY 2017 data are outlined below:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

  • The race of federal offenders remained largely unchanged from prior years.  In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race.  Non-U.S. citizens accounted for 40.7 percent of all offenders.

  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

  • Drug sentences remained relatively stable across all drug types in fiscal year 2017.  The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government.  Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016.  In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Monday, March 5, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9)

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

SCOTUS grants cert on structural SORNA issue and Justice Sotomayor dissents in capital case with IAC issues

The Supreme Court has been mulling over a number of cases that would, if cert were granted, be of great interest to sentencing fans. But the Justices, via today's new SCOTUS order list, did not grant (or deny) cert on any blockbusters. Here is the SCOTUSblog accounting of what sentencing fans did get today:

The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine....

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

Justice Sotomayor's solo dissent in Wessinger ends this way:

The Court’s denial of certiorari here belies the “bedrock principle in our justice system” that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right. Martinez, 566 U.S., at 12. Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings.  The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court’s precedent.  Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.

March 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

"Sixth Amendment Sentencing after Hurst"

The title of this post is the title of this notable new article authored by Carissa Byrne Hessick and William Berry available via SSRN. Here is the abstract:

The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized.  At times the doctrine has expanded—invalidating sentencing practices across the country — and at times it has contracted — allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine.  Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt.  This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

March 5, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, March 4, 2018

Noting lengthy struggles in California over the definition of a violent crime

Federal sentencing practitioner know all too well how hard it can be to clearly define what offenses qualify as a "crime of violence" or a violent felony. And while the federal jurisprudence over this issue can be hellish, states can struggle with similar issues in various contexts.  This new Los Angeles Times article, headlined "How a list of 23 crimes now dominates California's debate over prison punishment," explains:

Consider the last two years of debate over what should, and should not, be a "violent" crime. That debate begins with the index of crimes in section 667.5 of the California Penal Code. The list was first enacted in 1976, and has been tinkered with so many times it's hard to say whether it's a fair representation of the most heinous crimes.

Here's why that matters: The list is now a key part of determining which California prison inmates are eligible for early parole under Gov. Jerry Brown's 2016 ballot measure, Proposition 57. A legal fight over how to interpret the ballot measure could become a potent political issue.

Brown signed the law creating the original list of violent crimes during his first tour of duty as governor. It's since been amended or expanded 38 times, the last effort in 2014. Eight specific offenses or crime categories were in the original version. Now, there are 23 crimes. The list almost doubled in size in just the five years between 1988 and 1993.

So what's included? Some violent crimes are relatively straightforward — murder, attempted murder, voluntary manslaughter, robbery, kidnapping. (Kidnapping, interestingly, was dropped from the list in 1977 with no noteworthy explanation and added back in 1991.) Some additions, like the inclusion of carjacking in 1993, were sparked by news events. A prosecutor told The Times that year that classifying the crime as "violent" would give "local district attorneys another weapon in their arsenal to attack this epidemic."

Voters opted to tweak the law twice, making substantial changes that weren't well publicized in those elections. Proposition 21 in 2000 removed the long-standing focus on specific kinds of robberies — those in someone's home and involving a "deadly or dangerous weapon" — and instead made "any robbery" a violent crime. In 2006, voters added more definitions of sex crimes.

And yet other crimes have long been sliced relatively thin. Only specific circumstances in the case of rape or first-degree burglary are on the list of violent crimes. It's doubtful, as a result, that the 23 offenses cover everything the average Californian would think of as being "violent."

This might not be a pressing issue if not for the changes brought on by Brown's 2016 ballot measure, which expanded parole opportunities to those serving time for a "nonviolent felony offense." That phrase is brand new, and Proposition 57 placed the term in the California Constitution.

It's unclear, though, whether "nonviolent felony offense" is just another way of saying any crime that's not on the list of violent crimes. A Sacramento Superior Court judge last month rejected that idea. At the same time, the judge ruled that some convicted sex offenders — who the Brown administration has deemed ineligible under Proposition 57 — should be considered for release because they weren't convicted of one of the 23 crimes.

Judge Allen Sumner's ruling seemed to hint that current law is full of knots crying out to be untangled. He wrote that "it is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean."

Some prior related posts:

March 4, 2018 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Saturday, March 3, 2018

Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform

Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:

The core of conservatism is the dignity of every individual and the value of every life.  That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals.  And that’s why we care about prison reform.  The values conservatives hold dear are jeopardized when prisons fail to deliver results.  We owe it to victims, law enforcement and the citizens of our communities to act.

In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform.  Back then, we stood squarely at a crossroads.  Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons.  We had to take action.  The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget.  Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.

Fortunately, state leaders chose a new direction.  S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions.  They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.

The results were transformative.  Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent.  Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars.  Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.

As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.

Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....

Nearly 80 percent of the prison population is still incarcerated for non-violent offenses.  Those convicted are staying in prison too long, nearly a third longer than in 2010.  Our system drains $500 million from taxpayers and has a negative impact on families and communities.  There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.

March 3, 2018 in Elections and sentencing issues in political debates, State Sentencing Guidelines | Permalink | Comments (2)

With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt

As reported in this local article, "Alva Campbell, "an inmate on Ohio’s death row who had his scheduled execution halted in November after a medical team could not find an accessible vein for the lethal injection, has died." Here is more:

Franklin County Prosecutor Ron O’Brien said the office of Gov. John Kasich notified him that Campbell died early Saturday of natural causes . No other information was available, and the Ohio Department of Rehabilitation and Correction could not immediately be reached.

Campbell, 69, was a twice-convicted killer, one that O’Brien has often called the “poster child” for the death penalty. Campbell was on parole from another murder conviction when, on April 2, 1997, he killed 18-year-old Charles Dials.  At that time, Campbell was on his way to court to face a series of armed-robbery charges but had been faking paralysis. When he was taken to the courthouse, he sprang from his wheelchair, seized a deputy’s gun and carjacked Dials outside.  The two drove around Columbus for hours before Campbell forced Dials onto the floor of his truck and executed him. Campbell was sentenced to die for that.

Over the years, authorities objected to and grumbled about Campbell’s attempts to delay the justice that a judge and jury had ordered for him.  Upon hearing of Campbell’s death Saturday, O’Brien said, “Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim’s family.”

After the failed execution in November, Campbell’s attorneys had said it was unlikely he could live to see another execution attempt.  They said he suffered from a host of serious cardiopulmonary problems and ailments.  He was returned to Death Row.

Recent prior related posts:

March 3, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Friday, March 2, 2018

"The State of Justice Reform 2017"

Download (11)The title of this post is the name of this terrific new resource created by the Vera Institute of Justice. The resource is packed with lots and lots of notable content and links, and here is how it is explained on its "About" page: 

Like many justice reform organizations, Vera is often asked, “What are the latest and most interesting developments in the field?” This question has grown more common as more and more people confront the need to improve the nation’s broken justice system and want to help.

We endeavor in this report to provide the beginning of an answer, limiting our scope (mostly) to 2017, the first year of a new administration — one pushing a “law and order” platform — and covering most, but not all, areas of justice reform.

Vera’s task was to determine which of the thousands of changes to policy, practice, and legislation should be covered in this annual recap.  To discern what should be included, we first asked Vera’s own internal experts to weigh in and identify what they felt was most important to cover in their subject areas. “Importance” was defined by the following criteria:

  • the potential impact of a reform;
  • the degree of change from past practice or norms; and/or
  • the degree to which the field or the media is looking to a reform as a promising or leading practice to improve systems.

Using this definition, “importance” can be positive or negative, supportive or hostile to reform. The report thus focuses on both the best and the worst of 2017.

After hearing from Vera’s own experts, we reached outward, crowdsourcing suggestions from Vera’s Facebook and Twitter followings.  Vera also invited 30 external experts to review drafts of specific sections, who are gratefully acknowledged under “Contributors.”  Finally, Vera is issuing this as a digital report to allow for ongoing feedback and contributions, with the hope that this dialogue will add even more to the collective knowledge base about the year that was.

All parts of this terrific resource are worth checking out, and these parts should be of particular interest to sentencing fans:

The State of Jails: Reformers Look to Jails as a Key to Ending Mass Incarceration

The State of Youth Justice: As Youth Incarceration Drops, Racial Disparities Persist

The State of Sentencing & Decriminalization: While Federal Sentencing Reform Efforts Look Bleak, States Push Ahead

The State of Prisons: States Take on Prison Reform

The State of Reentry: For Those Rejoining Society, a Multitude of Obstacles Persist

March 2, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

As reported in this prior post, Prez Trump yesterday announced these notable new nominations to the US Sentencing Commission.  Usually, only hard-core sentencing nerds like me play much attention to USSC nominations, but this slate of nominees, especially the nomination of Bill Otis, has led to some notable media attention.  Here are some of the commentary I have already seen: 

From The Daily Caller, "Trump's Sentencing Commission Nominees Show He May Not Be That Angry At Jeff Sessions"

From Mother Jones"'I Live to Put People in Jail': Here Are Trump's Nominees for the US Sentencing Commission"

From Reason, "Trump Nominates Man Who Called for Abolishing US Sentencing Commission to US Sentencing Commission"

From Slate, "Trump picked a mass-incarceration advocate obsessed with 'black-on-black' crime for a job setting federal sentences"

From Splinter, "Trump Nominates the Last Person You'd Ever Want to Help Oversee the Criminal Justice System"

And perhaps best highlighting how this one nomination is not like the others, here is the text of this press release from Families Against Mandatory Minimums released just a few hours after Prez Trump announced his new USSC picks:

FAMM president Kevin Ring issued the following statement on William Otis, one of four nominees put forward today by the Trump administration for the U.S. Sentencing Commission, the administrative body that writes and updates the federal sentencing guidelines used to sentence more than 70,000 people each year in federal courts:

FAMM has never taken a position before on U.S. Sentencing Commission nominees, but we feel compelled to change that policy in light of today’s announcement.  Mr. Otis’s outdated views are well-known and well-documented.  This is not a person who will be guided by evidence and data.  The Senate should reject this nomination.

Prior related post:

March 2, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (20)

Thursday, March 1, 2018

"Wrong Turn on the Ex Post Facto Clause"

The title of this post is the title of this notable new paper authored by Paul Reingold and Kimberly Thomas now available via SSRN. Here is the abstract:

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime.  But deciding what constitutes an increase in punishment can be tricky.  At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause.  At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause.  Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences.  Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners.  If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only.  Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees.  Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause.  In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.

March 1, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers"

In this post from a few days ago, I noted a report that Prez Trump has been known privately to give "a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty."  Now, as reported here by CBS News under the headline "Trump brings up death penalty for drug dealers, suing drug companies at opioids summit," Prez Trump has brought his thinking into the public discourse:

President Trump made an unexpected appearance at a White House summit on the opioid crisis Thursday afternoon, floating penalties for "opioid companies" and tougher punishments for drug dealers, noting that some countries have the "ultimate penalty."

"The administration's gonna' be rolling out policy over the next three weeks and it'll be very, very strong," the president said. "I've also spoken with Jeff (Sessions) about bringing a lawsuit against some of these opioid companies. I mean, what they're doing and the way, the distribution. You have people who go to the hospital with a broken arm and the come out addicted. They're addicted to painkillers, and they don't even know what happened."

"So we're going to very much, you know, as you know, I think we've been more involved than any administration by far. It's a problem that's growing.  And drugs are a similar but different problem in the sense that we have pushers, and we have drug dealers that don't — I mean, they kill hundreds and hundreds of people.  And most of them don't even go to jail. You know, if you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3000 people, and nothing happen to them. And we need strength with respect to the pushers and to the drug dealers. And if you don't do that, you're never going to solve the problem."

"Some countries have a very, very tough penalty, the ultimate penalty," the president said.  "And by the way, they have much less of a drug problem than we do.  So we're going to have to be very strong on penalties.  Hopefully we can do some litigation against the opioid companies."

A video of Prez Trumps comments are available at this link via CNN.  Yikes!

Prior related post:

March 1, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Prez Trump makes (tough) nominations to US Sentencing Commission

Though there is much talk these days of Prez Trump and AG Jeff Sessions being at odds, the President today announced these new nominations to the US Sentencing Commission that I suspect are very much to the liking of Attorney General Sessions.  Here are the basics, with lots of commentary to follow (in this post and perhaps others):

Today, President Donald J. Trump announced his intent to nominate the following individuals to the United States Sentencing Commission:

If confirmed, Judge William H. Pryor Jr. of Alabama will serve as the Chairman of the United States Sentencing Commission. Judge Bill Pryor serves as a Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, and as Acting Chairman of the United States Sentencing Commission....

If confirmed, Judge Luis Felipe Restrepo of Pennsylvania will serve as a Commissioner of the United States Sentencing Commission. Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit. Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama. Prior to his elevation to the Third Circuit, Judge Restrepo served for two and a half years as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama. Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

If confirmed, Judge Henry E. Hudson of Virginia will serve as a Commissioner of the United States Sentencing Commission. Judge Henry Hudson serves as a United States District Judge for the Eastern District of Virginia. Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush. Before his appointment to the Federal bench, Judge Hudson served as a Virginia circuit judge for Fairfax County, Director of the United States Marshals Service, as the Senate-confirmed United States Attorney for the Eastern District of Virginia, and as the elected Commonwealth’s Attorney for Arlington County, Virginia.

If confirmed, William Graham Otis of Virginia will serve as a Commissioner of the United States Sentencing Commission. Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

Regular readers may recall this post from August 2017 linking to a Wall Street Journal article reporting that "Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson" to the USSC.  But regularly readers are likely even more familiar with the name Bill Otis, because he was once a regular commentor on this blog and has long been a prominent person who prominently shares his (tough-on-crime) sentencing perspectives in many media.  I have to guess that AG Sessions was also happy to see Bill's name on this list as well (and I have already noticed on twitter a few folks who are not happy to see Bill's name on this list).  I am personally very friendly with Bill Otis (and his famous wife), and we have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

I also suspect AG Sessions is also quite pleased to see his Alabama pal, Judge Bill Pryor, getting officially tapped to serve as Chair of the US Sentencing Commission (which he has been serving as in the acting capacity for over a year).  I have long been intrigued and impressed by Judge Pryor's views on a range of sentencing issues, and I have been particularly pleased with the many kinds of new data reports the USSC has been producing during his short time as Chair.

Last but not least, though I do not know too much about Judge Luis Felipe Restrepo, I am pleased to see a former defense attorney named to the USSC to balance out all the potent new prosecutorial perspectives.  I am not sure if this "slate" of nominations have already been in some way blessed or vetted by key members of the Senate Judiciary Committee, but I am sure that the nomination of Judge Restrepo may well be intended as, and may rightly be seen as, one way to get Senators on both sides of the aisle to be comfortable with all of these nominees. 

March 1, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Will strong religious liberty advocates rally for Mennonite investigator jailed for refusing to testify in Colorado capital case?

The question in the title of this post is prompted by this remarkable story from the Denver Post headlined "Mennonite investigator sent to jail after refusing to testify in Robert Ray death penalty hearing: Lawyer for Greta Lindecrantz says she is being punished for long-standing religious beliefs." Here are the basics:

A 67-year-old Mennonite woman spent a second day in the Arapahoe County jail Tuesday after she refused to testify for the prosecution in a death penalty case. Greta Lindecrantz on Tuesday morning was found in contempt of court after she told District Judge Michelle Amico she would not answer questions in the witness stand because of her religious beliefs. Lindecrantz has been called to testify on behalf of the prosecution in an appeals hearing for Robert Ray, who was sentenced to death in 2009 for ordering the murder of Javad Marshall-Fields and Vivian Wolfe, who were witnesses in another murder case.

Lindecrantz worked as an investigator for Ray’s defense team, but those attorneys have not called her as a witness. However, the prosecution wants to question her about her work during the investigation and original trial, said her attorney, Mari Newman. All of her work already is a part of the official court record and there really is no reason for her to take the stand again, she said.

Lindecrantz sat in the courtroom wearing an orange jumpsuit with her hands shackled as Newman argued that she should be released because she is being punished by the courts for religious beliefs. Testifying would go against her moral and religious views, Newman said. “Imprisonment has not been effective,” Newman said. “It will not be effective tomorrow.”

But Amico said she had made her decision and was sticking to it. She told Newman she could appeal to a higher court. Until then, Lindecrantz would go back to jail. “It was a difficult decision for the court to make (Monday),” Amico said. Newman had asked for a lesser punishment, but Amico responded, “How would less punishment be effective? I’ve imposed jail and she’s still refusing to testify.”

After the hearing, Newman gathered on the courthouse lawn with Lindecrantz’s husband, Dave Sidwell, and supporters from the metro area’s two Mennonite congregations. “She has a fundamental religious belief against the killing of other human beings and specifically against state-sanctioned killing in the form of the death penalty,” Newman said. “She has refused to testify as a witness called by the prosecution — and the reason, the one and only reason she’s refused to testify, is because to do so would violate her firmly held religious beliefs against the death penalty.”

Because of her religious conviction, Lindecrantz has two choices — stay in jail or abandon her faith, Newman said. On Monday night, Lindecratz was in a cell with nine women, some of whom were sick all night because they were detoxing from drugs. Lindecrantz is old enough to be those women’s mothers, she said. “For the court to imprison her until she is broken, until her will is broken, and she abandons her faith and her view that she cannot participate in state-sanctioned killing is an abomination,” Newman said.

Sidwell, who also is a Mennonite, said he supported his wife’s stand, saying they both were adamantly opposed to the death penalty. “She’s not going to change her mind,” Sidwell said. “It’s, to me, a pointless pursuit.”

The Rev. Vern Rempel, pastor of Beloved Community Mennonite Church in Englewood, said he counseled Lindecrantz over the weekend about what she would do when called to the stand Monday morning. Those discussions included figuring out a way that Lindecrantz could comply with the courts without betraying her religious conviction. On Sunday, the congregation gathered around Lindecrantz to pray over the decision. “On Sunday, she said she had clarity and was ready to do this,” he said. “Really, we felt the strength of her commitment.”

Mennonite opposition to the death penalty dates to 1525, Rempel said. “This is not something that is not a mood of Greta’s,” he said. “Or a fancy. Or something she’s making up. It has been a lifetime commitment for her.”

While Lindecrantz is spending her second night in jail, the legal drama has been playing since Jan. 20, when Newman first filed a motion in an attempt to keep her client off the witness stand. But Amico repeatedly denied the motion, saying in an order written on Feb. 16 that allowing people to refuse to participate in death penalty cases on religious grounds would disrupt the justice system. Religious-based capital defense teams would be able to refuse to follow proceedings, rules and laws based on those grounds, Amico wrote. It would create an “absurd and unworkable result” for death penalty cases in Colorado.

Because of the politics involved, I am inclined to guess that the folks who eager to support, on religious liberty grounds, those resisting laws restricting displays of religious items on public lands or laws concerning certain medical procedures will not be quite as quick to get behind this particular form of legal resistance based on sincere religious beliefs. (And, by the same political token, I suspect those usually critical of legal resistance based on religious liberty claims may not be so critical of the claim in this setting.)

March 1, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Who Sentences? | Permalink | Comments (11)

"The Politics of Prosecution: Examining the Policymaking Role of Prosecutors"

The title of this post is the title of this new paper available via SSRN authored by Abhinav Sekhri. Here is the abstract:

This short paper focuses on prosecutors in the federal setting and contributes to this growing field of scholarship.  Through the lens of Prosecutorial Agreements in the sphere of corporate criminal liability, I demonstrate that prosecutors engage in important policy making exercises.  I argue that this analysis helps better understand the constrains in which prosecutorial discretion is exercises, and here I suggest how such an analysis offers a more nuanced reading of the prosecutorial charging practices in corporate crime over the last two decades.  I conclude by suggesting that examining the policymaking potential of prosecutors merits great attention today, as the importance of these actors within the criminal justice system is being appreciated beyond legal spheres.

March 1, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, February 28, 2018

Senator Grassley talking up Senate vote on his SRCA bill along with any prison reform bill lacking sentencing reforms

As reported in this post, the White House yesterday signaled its disaffinity for key parts of the Sentencing Reform and Corrections Act when an official was quoted as saying the "sentencing reform part still does not have a pathway forward to getting done."   But Senate Judiciary Committee Chair Chuck Grassley is seemingly not prepared to give up on his bill, as detailed in this new press article headlined "Grassley: I'll fight for sentencing reforms."  Here are the key details:

U.S. Sen. Chuck Grassley, R-Iowa, pledged Wednesday to fight for a criminal justice proposal that includes reducing certain mandatory prison sentences, and he raised the prospect of blocking a package of related reforms the White House and congressional Republicans are said to be interested in if he can't get an agreement....

Late Tuesday, the White House expressed interest in proposals to reduce recidivism among offenders, but not changes to sentences. A White House official who wasn't identified said the sentencing reform piece "does not have a pathway forward to getting done," according to several news reports. Senate Majority Leader Mitch McConnell, R-Kentucky, also is said to be an obstacle to getting the legislation to the floor.

On a conference call with Iowa reporters Wednesday, Grassley disputed the idea his bill can't pass and said with Democrats and Republicans, there are at least 60 votes for his proposal. The bill passed the Senate Judiciary Committee two weeks ago on a 16-5 bi-partisan vote.

Grassley said people pushing for a narrower approach just want to get a bill passed. "Well, if they take up prison reform, they’re going to have to have 60 votes to get prison reform up.  And I’ll bet we’ve got, if all the Democrats go along with me, we can stop that from coming up until we get a deal to get a vote on my sentencing reform," Grassley said.

Grassley, who chairs the Senate Judiciary Committee and has been a key figure in getting the Trump administration's court picks through the confirmation process, said he planned to talk to Durbin first before deciding whether to take that route....

On the conference call Wednesday, Grassley said the chances for his proposal, at the moment, aren't very good.  But he said he isn't going to give up.  "This would be a bipartisan policy win for the administration. And it seems like a no-brainer to me."  He said he hasn't spoken to President Trump about the proposal yet.

A few prior related posts:

February 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

"Pharma Bro" Martin Shkreli, facing decades under guidelines, seeks prison sentence of 12-18 months

As reported in this Reuters article, "Martin Shkreli, the former drug company executive convicted of defrauding investors in two hedge funds he ran, has asked a federal judge to sentence him to 12 months to 18 months in prison, much less than suggested federal guidelines."  Here is more:

Shkreli, 34, has been in jail since September, when U.S. District Judge Kiyo Matsumoto revoked his bail after he offered a $5,000 bounty for a strand of Hillary Clinton’s hair in a Facebook post.  Matsumoto is scheduled to sentence him on March 9.

Shkreli’s lawyers said in a court filing on Tuesday that a sentence of 27 years or more calculated using federal guidelines would be “draconian and offensive.” The filing included a letter from Shkreli, asking the judge for leniency.  “I accept the fact that I made serious mistakes, but I still believe that I am a good person with much potential,” he said.

In addition to the prison sentence, they proposed Shkreli complete 2,000 hours of community service and undergo court-mandated therapy....

Shkreli, nicknamed “Pharma Bro,” raised the price of anti-infection drug Daraprim by over 5,000 percent in 2015 while he was chief executive officer of Turing Pharmaceuticals.  A jury found him guilty last August of unrelated securities fraud charges.  They determined that he lied to investors about the performance of his hedge funds, MSMB Capital and MSMB Healthcare.  He also was found guilty of conspiring to manipulate the stock price of a drug company he founded, Retrophin Inc.

Shkreli’s investors eventually came out ahead after he paid them in shares of Retrophin, and in some cases through settlement agreements and consulting contracts with the company, according to testimony at trial.  However, Matsumoto ruled Monday that he would still be held responsible for defrauding investors out of millions of dollars, because he secured their investments through fraud.

Shkreli’s lawyers said in the filing that he made mistakes when communicating with his investors not because he wanted to steal from them, but because he “could not bring himself to admit failure.”  They also tried to counter the view that Shkreli was the “greedy Pharma Bro.” They pointed to his work at Retrophin to develop a drug for a rare childhood degenerative disease called PKAN that was used to treat some patients in Cyprus, as well as online relationships he has maintained with patients.  Even the controversial Daraprim price hike was meant to fund research into rare diseases, they said.

The filing included dozens of letters supporting Shkreli, including from family members and a former Turing employee who praised his “altruistic passion.”

Prior related post:

February 28, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence

A helpful reader made sure I did not miss the remarkable opinion emerging yesterday from the First Circuit in the form of a very lengthy concurrence in the denial of rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here). Last year I noted the panel opinion in this case in this post titled "Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant."  Interestingly, this time around all the First Circuit judges seem to be on the same page, deciding they lack authority to find Wendell Rivera-Ruperto's extreme sentence unconstitutional, but urging the Supreme Court to revisit the precedent they see as standing improperly in their way.

Judge Barron's lengthy opinion is a must-read for Eighth Amendment fans, and it defies ready summary.  To begin, Judge Barron explains why the analytical framework set by Solem v. Helm, 463 U.S. 277 (1983) would lead him to "find that Rivera's mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment."  But, continues Judge Barron, judges must further consider Harmelin v. Michigan, 501 U.S. 957 (1991), and "the Harmelin concurrence controls the outcome here, and ... does so by limiting our inquiry to a consideration of only Solem's first criterion."  And, according to Judge Barron, ultimately judges "have no choice but to approve mandatory 'forever' sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin." 

After intricate analysis of these and other Eighth Amendment and related precedents, this remarkable opinion (which, again, was joined by all the First Circuit judges), concludes this way:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind.  He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate.  He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free.  And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem.  In those intervening decades, virtually no jurisdiction has been willing to replicate that state's experiment.  In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it.  And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that -- due to their cumulative length -- necessarily results in the imposition of a mandatory sentence of life without parole.

February 28, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Given that the Sentencing Reform and Corrections Act of 2015 could not even get very far in Congress despite the support of then of the President and Attorney General, I have never been all that optimistic about the prospects for the 2017 version of this bill.  Attorney General Sessions has been against it from the get-go, and this new report from the The Hill indicates that the White House has now put its opposition forward.  Here are the details:

The White House on Tuesday said it sees no path forward for legislation to reduce mandatory minimum prison sentences, instead throwing its support behind measures aimed at reducing recidivism rates. "The conclusion we reached was that, at this time, it's appropriate for us to go forward with prison reform," a senior administration official said.

The White House's position represents a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session.

The Senate Judiciary Committee advanced the Sentencing Reform and Corrections Act to the floor by a 16-5 vote earlier this month over the objections of Attorney General Jeff Sessions and a few GOP members on the committee....

A senior White House official said the administration respects Grassley’s efforts, but sees no path forward for sentencing reform. "The sentencing reform part still does not have a pathway forward to getting done," the official said. "And so what we see now is an environment where the prison reform does have enough support to get done. And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done."

A second official said the White House is instead focused on prison reform legislation like Rep. Doug Collins's (R-Ga.) bipartisan Prison Reform and Redemption Act. That bill, co-sponsored by nine Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement if they complete evidence-based programs while in prison that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment. "I think that that is a good basis that we can look at and start with," the second senior White House official said of Collins's bill. “I do think that as the conversation continues over the coming weeks, there might be additions, changes, amendments, and we want to go through the regular order committee processes. But I do think that that's a big piece of legislation to look at as a starting point."

A source familiar with the talks with the White House told The Hill in January that Collins’s bill is expected to be marked up in the House Judiciary Committee before the first quarter ends in April. Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) have introduced similar legislation in the Senate.

Taylor Foy, a spokesman for Grassley, said the chairman is focused on passing sound policy, not the path of least resistance. "Bipartisan support continues to grow in the Senate for comprehensive criminal justice reform, which includes providing additional discretion for judges at sentencing for lower level, non-violent drug crimes," he said. "Chairman Grassley’s broadly bipartisan Sentencing Reform and Corrections Act is cosponsored by nearly a quarter of the Senate. Our office continues to have productive conversations with the White House on this issue.”

A senior White House official said President Trump is planning to sign an executive order Wednesday to revamp the Federal Reentry Council and move it from the Department of Justice to the White House. Under the Obama administration, the interagency council worked to reduce recidivism and improve employment, education, housing, health and child welfare outcomes, according to the Department of Justice website.

The White House said Tuesday it sent a list of legislative principles for reform efforts to Congress. In addition to effectively using government resources to reduce crime and incentivize re-entry programs, the White House wants Congress to expand access to prison work programs. It also wants lawmakers to evaluate and facilitate public and private partnerships that improve pre- and post-release employment opportunities for inmates.

I am disappointed but not especially surprised that the White House is indicating that it is only willing to support a more modest prison reform bill rather than all the significant sentencing reforms that appear in the SRCA.  Prez Trump has to date only voiced support for prison reform efforts, and he has formally and informally talked up a "tough and tougher" approach to sentencing drug dealers.  Those eager to see reductions in federal drug sentences should likely be grateful many leading GOP legislators favor such reforms because otherwise Prez Trump might well be actively advocating for enhancing the severity of federal drug sentences.  

I have long been saying that, for various reasons and for lots of offenders, significant prison reform could end up even more consequential than some proposed sentencing reform.  Thus, I sincerely hope that everyone interested in the kinds of reforms that the SRCA represent will be prepared to get behind the Prison Reform and Redemption Act (PRRA) and work to make it as effective and expansive and consequential as possible.  Some version of the PRRA looks now to be the only significant federal criminal justice reform proposal with a realistic chance of becoming law in 2018. 

It has already been nearly a decade since we have seen anything close to significant legislative reforms benefiting federal defendants or prisoners. (I am thinking of the 2010 Fair Sentencing Act as the last big legislative change, though the 2014 "Drugs-2" guideline amendment was also a very big deal.)  I want to believe that the passage of something like the PRRA could help create new momentum for a range of reforms bog and small in Congress and elsewhere, and so the fact that the White House is endorsing some reform efforts is still encouraging despite its discouraging view of the SRCA.

A few prior related posts:

February 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

New Buried Alive Project taking on LWOP sentences for federal drug offenses

An important new effort to take a hard look and extreme federal sentences recent launched under a (great) fitting name: The Buried Alive Project.  Here is how the project's website explains its basic mission:

The Buried Alive Project works to raise awareness and help eliminate life without parole sentences for federal drug offenses through transformative legislation and litigation.  We use statistics and stories to educate the public and amplify the voices of those directly impacted.  The human element is rarely addressed but necessary to drive change needed to reform the criminal justice system.  By engaging people across the country, this project will harness America’s collective interest, passion, and direct experience of this issue into concrete change.

The Dallas Morning News has this Q&A with Brittany Barnett, a lawyer who help found the Buried Alive Project.  Here is an excerpt:

Who are some of the individuals who remain buried alive by this sentencing?

Alice Johnson, a 62-year-old grandmother and great-grandmother from Memphis, is serving her 21st year of a life without parole sentence for her role in a non-violent drug conspiracy.  Like Sharanda [Jones], this is Ms. Alice's first ever conviction — felony or otherwise. Absolutely no aspect of her offense was violent.

Ms. Alice, who has served one-third of her life in prison, has an outstanding record of achievement in prison and works diligently to prove she is deserving of a second chance at life. A life without parole sentence demands a special kind of courage — the ability to act with grace and dignity in a totally degrading situation. Ms. Alice epitomizes this special kind of courage.

Keeping Alice in prison for the rest of her life serves no useful purpose to her or society. We cannot barter human lives for sake of appearing tough on crime. It is an utter waste of human life and taxpayer dollars.

February 28, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, February 27, 2018

"The State of the Death Penalty Decline"

The title of this post is the title of this notable new paper now available via SSRN authored by Brandon Garrett and Ankur Desai.  Here is the abstract:

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s.  In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty.  What explains this remarkable and quite unexpected trend?

In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences.  First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial.  Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury.  Third, states at different times have created state-wide public defender offices to represent capital defendants at trial.  In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing.

We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level.  However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors.  The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors.  These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

February 27, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (14)

SCOTUS finally resolves Jennings v. Rodriguez, ruling Ninth Circuit erred when deciding detained aliens have a statutory right to periodic bond hearings

The Supreme Court granted cert in Jennings v. Rodriguez nearly two years ago, but the case got set for re-argument this Term and now has finally resulted in an opinion concerning certain procedural rights for detailed aliens.  The full Jennings opinion is lengthy and intricate, and the opinion for the Court authored by Justice Alito sets up the discussion this way:

In this case we are asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings.  All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.  But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.  But a court relying on that canon still must interpret the statute, not rewrite it.  Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

I believe the context and content of the majority's ruling likely mean the Jennings decision will not have many big implications outside the immigration detention setting. But Justice Breyer's lengthy dissenting opinion discusses bail and due process more broadly, and his closing sentiments highlights why a ruling the other way in Jennings might have been significant for a broad array of criminal defendants:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required.  Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail.  Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings.  I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed.

The bail questions before us are technical but at heart they are simple.  We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.”  We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.  And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail.  It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.  I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.  I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.

February 27, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, February 26, 2018

Split California Supreme Court holds 50-year sentence for juve kidnapper violates the Eighth Amendment after Graham

This afternoon, the Supreme Court of California issued a 93-page opinion in California v. Contreras, No. S224564 (Cal. Feb. 26, 2018) (available here), which extends the limits that the Supreme Court's Eighth Amendment ruling in Graham places on juvenile sentencing for non-homicide crimes. Here is how the majority opinion, authored by Justice Liu, gets started:

Defendants Leonel Contreras and William Rodriguez were convicted in a joint trial of kidnapping and sexual offenses they committed as 16 year olds. Rodriguez was sentenced to a term of 50 years to life, and Contreras was sentenced to a term of 58 years to life.  We granted review to determine whether the sentences imposed on these juvenile nonhomicide offenders violate the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham).  We hold that these sentences are unconstitutional under the reasoning of Graham.

The lead dissenting opinion, authored by Chief Justice Cantil-Sakauye, gets started this way:

I respectfully dissent. The majority’s erroneous interpretation and extension of Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not intend — the categorical condemnation of all sentences in which juvenile offenders convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same time, the majority fails to properly account for legislation and regulations that afford defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no later than when they reach the age of 60.  These measures take defendants’ sentences outside of Graham’s purview even under the majority’s mistaken approach to that decision. Defendants’ sentences do not violate the Eighth Amendment to the United States Constitution, and I would so hold.

Because this ruling appears to rest squarely on application of the Eighth Amendment of the US Constitution rather than on the parallel provision in article I, section 17 of the California Constitution, it would seem the state of California could seek to appeal this expansive application of the Graham ruling to the US Supreme Court. It will be interesting to see if California pursues an appeal and what might become of it were the state to do so.

February 26, 2018 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

At just what level of Dante's Inferno does modern ACCA jurisprudence reside?

Dante_s_inferno_by_somnium_maris-d68js14The silly question in the title of this post is my silly reaction to a not-so-silly ruling from a Fourth Circuit panel today flagged for me by a helpful reader.  I will get to that ruling in a minute, but first I must spotlight this website's helpful explanation of the circles of hell set forth in Dante's Inferno:

The Levels of Hell

In Dante's Inferno, Hell is described as having 9 different levels, or circles, each lower than the last.  As one descends into the depths of hell, he comes closer to the 9th circle where Satan himself resides.  Each level of hell is reserved for different types of sinners, and different punishments are inflicted on the damned depending on the nature and severity of their sin.  The greater their sin, the lower the level to which they are condemned to spend eternity.

Notably, the "seventh level of hell is reserved for those who are guilty of violence, whether it be against themselves, property, nature, or other people."  I suppose that would be the fitting level for locating the modern federal court jurisprudence over application of the Armed Career Criminal Act because what is typically debated within this jurisprudence is whether a defendant's prior conviction qualities as a "violent felony." 

But, in referencing Dante's Inferno, I am really thinking about federal criminal practitioners and federal judges who must feel like they are dropping through various levels of hell as they sort through various intricate precedents to try to figure out what is and what is not a "violent felony" for ACCA purposes.  Last week I noted here a big split Fifth Circuit en banc ruling holding that Texas burglary convictions do not serve as predicates for the Armed Career Criminal Act.  Today, it is a Fourth Circuit panel ruling that has my ACCA head hurting; US v. Middleton, No. 16-7556 (4th Cir. Feb. 26, 2018) (available here), gets started this way:

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA.  Due to the idiosyncrasies of the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force.  We conclude that it does not and reverse.

Critically, there is no suggestion in this opinion that Jarnaro Carlos Middleton's conviction for involuntary manslaughter had anything to do with selling alcohol to a minor.  But a 1992 opinion of the Court of Appeals of South Carolina upholds an involuntary manslaughter conviction involving selling alcohol to a minor, and that fact ends up shaping whether Jarnaro Carlos Middleton faces a 15-year statutory mandatory minimum or a 10-year statutory mandatory maximum for the federal crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).  Somewhere Franz Kafka (as well as Dante Alighieri) is blushing.  And if the realities of the majority opinion does not whet your ACCA appetite, Middleton comes with a partial concurrence that starts this way:

The majority concludes that a conviction for South Carolina involuntary manslaughter does not categorically qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).  While I agree with that conclusion, I hesitate to join the majority’s analysis.  In my view, our recent decisions in In re Irby, 858 F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), undermine the majority’s reasoning that South Carolina involuntary manslaughter can be committed with de minimis force and by simply causing injury without using force.  Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an ACCA predicate because, although the ACCA force clause requires a higher degree of mens rea than recklessness, an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct.  Therefore, while I write separately as to Part II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.

Natch.

February 26, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Alabama joins Ohio as only modern state to truly botch an execution

As long time readers know, I try to draw a distinction between ugly and botched executions: ugly executions are those that do not go smoothly, but still result in the condemned prisoner ending up dead (as in Oklahoma in 2014); botched execution are those that involve prison official actively seeking to complete an execution and ultimately failing.  Leaving aside a botched electrocution in Louisiana in the 1940s, my own state of Ohio had the distinction of being the only jurisdiction with a modern botched execution history and, as noted here, has had two inmates return to death row after failed lethal injection attempts.

But now, as this NBC News piece details, Alabama is clearly a new player in this sad universe as details of its execution efforts last week are emerging.  The press report is headlined "Lawyer describes aborted execution attempt for Doyle Lee Hamm as ‘torture’," and here are some details (as well as a reminder Ohio is still beating Alabama in botched executions) :

An Alabama execution team left a death-row inmate with more than a dozen puncture marks in his legs and groin and may have penetrated his bladder and femoral artery before the lethal injection was called off, the prisoner's attorney said Sunday. "This was clearly a botched execution that can only be accurately described as torture," attorney Bernard Harcourt said in a statement after a doctor examined his client, convicted murderer and cancer survivor Doyle Lee Hamm, in prison.

State officials did not respond to a request for comment following the examination. Last week, they said that after the execution started late Thursday because of last-minute appeals, the team wasn't sure it could find a good vein before the death warrant's midnight expiration. "I wouldn't necessarily characterize what we had tonight as a problem," Corrections Commissioner Jeff Dunn told reporters at the time.

Afterward, Harcourt went to federal court and convinced a judge to permit a doctor of his choosing to examine Hamm, who has been on death row for 30 years for the 1987 murder of a motel clerk. The attorney said that while Hamm was strapped to the gurney, the IV team "simultaneously worked on both legs at the same time, probing his flesh and inserting needles."

"The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day," he said. "They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen." During the execution, Hamm "was lying there praying and hoping that they would succeed because of the pain, and collapsed when they took him off the gurney," Harcourt said. In addition to the puncture marks, Hamm has bruising and swelling in his groin and pain from his abdomen to upper thigh, the lawyer said. He was still limping on Sunday....

Before Thursday, Harcourt had warned that due to Hamm's history of drug abuse and his illnesses, it would be impossible to find good veins to deliver the deadly drugs. A judge ruled the execution could proceed as long as the IV wasn't inserted in Hamm's arms. The U.S. Supreme Court, with three justices dissenting, then declined to stop the lethal injection.

Prison officials have given few details about what went on in the death chamber before Hamm got a reprieve. Dunn told reporters Thursday that he did not think the trouble the team had finding a vein would prevent the state from killing Hamm in the future.  "The only indication I have is that in their medical judgement it was more of a time issue, given the late hour," the commissioner said.

Harcourt wanted to examine the execution chamber and the notes prison workers took during the procedure, but the judge turned him down.  The judge did, however, order the Department of Corrections to preserve the notes and any other material from the execution try, including the clothing Hamm was wearing.

Hamm is not the first inmate to survive an execution attempt because of bad veins.  Three months ago, Ohio called off the execution of Alva Campbell after the medical team tried for 30 minutes to find an access point without success.  And in 2009, another Ohio inmate, Romell Broom, was spared after the execution worked for two hours to insert a needle. In appeals, he argues a second attempt would constitute cruel and unusual punishment.

February 26, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

"Divided Justice: Trends in Black and White Jail Incarceration 1990-2013"

The title of this post is the title of this notable new report released today by the Vera Institute of Justice.  This Vera webpage provides this overview and a key takeway:

Overview

Recent data analyses on jail incarceration — taken from Vera’s Incarceration Trends tool — reveal that although significant racial disparities still exist between black and white jail incarceration rates, incarceration rates for black people are declining, while rates for white people are rising.  This report dives into the data on black and white incarceration trends from 1990 to 2013, and poses several questions for further exploration that might explain why these rates are shifting.  However, the report also argues that we need more data to fully understand the causes and consequences of racial disparities in incarceration — and to begin enacting more race-conscious jail reduction efforts.

Key Takeaway

While black incarceration rates have declined — and white incarceration rates have risen — over the past several decades, the lack of complete and accurate data prevents effective analyses of the causes and drivers of these trends and on racial disparities more broadly in the justice system.

February 26, 2018 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

SCOTUS takes up Alabama case concerning competency to be executed while again turning away post-Hurst capital challenges

The US Supreme Court issued this order list this morning, and capital punishment followers will find a few SCOTUS cert decisions of note.  First, the Court granted certiorari in Madison v. Alabama, No. 17-7505, and the docket number here is quite important because Vernon Madison had two notable cert petitions pending: Madison v. Alabama, 17-7505, which was granted raises asked whether Alabama may "execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?";  Madison v. Alabama, 17-7535, which was denied raised the issue of whether Alabama could move forward with the execution of a defendant whose death sentence result from the state's now-abolished practice of judicial override.

The death sentencing procedural issue that the Supreme Court decided not to take up in Vernon Madison's case is, of course, yet another off-shoot of what I have long called the "post-Hurst hydra."  After the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation destined to develop in various ways in various courts as state and federal judges tried to make sense of just what Hurst must mean for past, present and future capital cases.  I am further reminded of that hydra because today's SCOTUS order list concluded with two short dissents from the denial of certiorari authored by Justices Breyer and Sotomayor in two Florida capital cases.  Justice Sotomayor's dissent is a bit longer and joined by Justice Ginsburg and includes these passages:

Dale Middleton and Randy Tundidor were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional.  See Hurst v. Florida, 577 U. S. ___ (2016).  Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst.  By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to the petitioners’ death sentences.

Having so concluded, the Florida Supreme Court continually refuses to grapple with the Eighth Amendment implications of that holding.  If those then-advisory jury findings are now binding and sufficient to satisfy Hurst, petitioners contend that their sentences violate the Eighth Amendment because the jury instructions in their cases repeatedly emphasized the nonbinding, advisory nature of the jurors’ role and that the judge was the final decisionmaker.  This Court has unequivocally held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).

February 26, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)