Saturday, April 23, 2016

White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"

Download (2)As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:

Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.

Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....

Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.

  • Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
  • Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
  • Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.

Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.

  • Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
  • Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....

Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.

  • Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
  • Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
  • CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
    • We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
    • At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
    • Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.

April 23, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3)

Reviewing the week that was at Marijuana Law, Policy and Reform

Regular readers are familiar with my periodic collecting of posts from my Marijuana Law, Policy and Reform blog, and lots of recent content on that site are collections of materials put together by terrific students in my Ohio State College of Law seminar.  Sadly, this seminar wrapped up this week, so this will be the last collection of MLP&R links that include student-generated postings:

April 23, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"The Prison Reformer Who Champions Ted Cruz"

The title of this post is the headline of this notable new Ozy article about a notable supporter of Senator Ted Cruz, who also has played a bit role in sentencing reform in Maryland.  Here is how it starts:

Michael Hough’s statehouse digs are filled with awards — from the American Conservative Union here, the Leadership Institute there.  You can’t miss the gold-framed Declaration of Independence, the old George W. Bush campaign sign or the NRA logo carpet outside the state senator’s office.  The photo of him and Ted Cruz glad-handing isn’t shocking, either, since Hough’s leading the presidential candidate’s primary efforts here in Maryland.  What’s more surprising: the picture next to it — of Hough and his wife, posing with another White House hopeful.  “My wife likes Donald,” the father of three says, painfully.

What’s a state campaign chairman to do?  Hough’s received high praise as “a respected conservative leader” from Cruz himself, though the 36-year-old lawmaker faces not just a divided home, but a divided state — one that could go the way of his wife if polls hold true during Maryland’s primary on Tuesday. It’s just one of many apparent contradictions. Bespectacled with a slick, Cruz-ian comb-over, Hough today looks nothing like the long-haired rock star of his garage-band days. He’s an Air Force vet who never served outside Wyoming.  And while he plays the part of a bona fide guns-and-faith conservative well, Hough’s most significant work is in … compassionate prison reform?

The Justice Reinvestment Act — which eases sentencing laws for nonviolent drug offenders and pushes offenders to treatment rather than prison — passed into law this month, in no small part thanks to Hough, who led the Republican efforts to craft it.  He’s also helped push through bills limiting civil asset forfeiture (“You had the ACLU and the prosecutors support it, which never happens,” he brags) and reforming police conduct and accountability — without being “antipolice,” Hough claims.  Popping open a Diet Coke, at just past 8 a.m., Hough calls the justice act the largest reform “in a generation” — and some experts agree it’s a doozy.

Yet, not everyone’s happy: “The Senate amended the life out of it,” the Maryland Alliance for Justice Reform’s Pat Schenck tells OZY.  It’s something to build off of and “a once-in-a-lifetime bill,” says Keith Wallington of the Justice Policy Institute, if only because “Maryland has (historically) set the bar pretty low for justice reform.” And while an early proposal included a reduction in prisons and budget savings nearing $250 million over 10 years, the Senate version went down to “a paltry” $34 million, Wallington says. “That’s a little overblown,” Hough counters, though he agrees the budget savings in the final bill will be less than originally projected.

At first blush, this stalwart Republican seems like an unlikely advocate for addicts and rampant recidivists.  But while GOPers such as Richard Nixon and Ronald Reagan birthed and expanded the war on drugs decades ago, red state leaders from Texas to Utah and Georgia have recently championed justice reform due to both compassionate conservatism and a response to “draconian laws” that proved costly yet rarely improved public safety, says Lauren Krisai with the Reason Foundation, a libertarian think tank.  As a teen growing up with an alcoholic father, Hough knew the tug and pull of crime and addiction — the Nirvana fan got through those years fixing cars, dying his hair blond and red, and ignoring school to the tune of a 2.0 GPA — but as an adult he became an expert in addressing those problems.  “We over-criminalize everything,” says Hough, whose non-legislature job is as a senior policy adviser on criminal justice for the Faith & Freedom Coalition.  “This is where my Christianity and libertarianism come together.”

April 23, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, April 22, 2016

Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional

In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:

Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).

This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:

In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.

But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall.  That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.

In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.

April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

"Department of Justice to Launch Inaugural National Reentry Week"

The title of this post is the title of this official US Department of Justice press release.  Here are excerpts from the release and details on a few of the planned events of the week that I am especially interested in:

As part of the Obama Administration’s commitment to strengthening the criminal justice system, the Department of Justice designated the week of April 24-30, 2016, as National Reentry Week. Attorney General Loretta E. Lynch and U.S. Department of Housing and Urban Development Secretary Julián Castro will travel to Philadelphia on MONDAY, APRIL 25, 2016, to hold events as part of National Reentry Week with public housing advocates, legal services providers and community leaders where they will announce new efforts to improve outcomes for justice-involved individuals including youth.

Later in the week, the Attorney General will visit a Federal Bureau of Prisons (BOP) facility in Talladega, Alabama, to highlight reentry programs in prison. Similarly, Deputy Attorney General Sally Q. Yates will visit a federal women’s prison in Texas and will later hold a media availability at Santa Maria Hostel, a specialized residential substance abuse, mental health and trauma facility. Acting Director Thomas Kane of the Bureau of Prisons will accompany both Attorney General Lynch and Deputy Attorney General Yates on their visits....

The Obama Administration has taken major steps to make our criminal justice system fairer, more efficient and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities. Removing barriers to successful reentry helps formerly incarcerated individuals compete for jobs, attain stable housing, and support their families. An important part of that commitment is preparing those who have paid their debt to society for substantive opportunities beyond the prison gates, and addressing collateral consequences to successful reentry that too many returning citizens encounter.

Leadership from across the Administration are traveling during National Reentry Week in support of these many events and are encouraging federal partners and grantees to work closely with stakeholders like federal defenders, legal aid providers and other partners across the country to increase the impact of this effort. National Reentry Week events are being planned in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. U.S. Attorney’s Offices alone are hosting over 200 events and BOP facilities are holding over 370 events....

• On Monday, April 25, 2016, the White House will hold an event with the Brennan Center on the costs of incarceration.

• On Monday, April 25, 2016, Deputy Attorney General Sally Q. Yates will deliver remarks before a screening of “Pull of Gravity” a documentary that follows returning inmates as they encounter reentry obstacles, hosted by the Justice Department as part of National Reentry Week. Assistant Attorney General Leslie R. Caldwell of the Criminal Division will also participate....

• On Wednesday, April 27, 2016, the White House will host the Fair Chance Opportunities Champions of Change event in South Court Auditorium. Attorney General Loretta E. Lynch will deliver remarks and Deputy Attorney General Sally Q. Yates will moderate a panel at the event....

• On Thursday, April 28, 2016, the head of the Civil Rights Division, Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division will deliver remarks at a reentry event at Mickey Leland Transitional Housing Facility, sponsored by the U.S. Attorney’s Office for the District of Columbia....

April 22, 2016 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Iowa Supreme Court requires giving reasons for even a presumptive consecutive sentence, and concurrence laments when "sentencing is given short shrift"

I helpful reader alerted me to an interesting little decision from the Supreme Court of Iowa today that makes me fell extra good going into the weekend.  For starters, the majority opinion in Iowa v. Hill, No. 15–0030 (Iowa April 22, 2016) (available here), reaches the important and valuable conclusion that a sentencing court must give reasons to justify a consecutive sentence even if the law creates a presumption for such a sentence.  Second, a special concurring opinion by Justice Appel cites some of my scholarship to stress the point that sentencing proceedings should generally get a lot more attention.

Here is the start of the majority opinion in Hill:

In this appeal, we must decide whether the presumption for consecutive sentences in Iowa Code section 908.10A (2013) excuses the district court from the general requirement to state why it imposed a consecutive sentence and, if not, whether the district court’s stated reason for this consecutive sentence was adequate.  The defendant pled guilty to failure to comply with sex-offender registry requirements, an offense he committed while on parole for the underlying sex crime.  The district court imposed a two-year prison sentence consecutive to his parole revocation and stated, “The reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense.”  The defendant appealed on grounds that the sentencing court failed to give reasons for imposing a consecutive sentence. The court of appeals affirmed, concluding the statutory presumption for consecutive sentences obviated any need to give reasons for imposing the consecutive sentence.  The dissenting judge disagreed, noting section 908.10A allows discretion to impose concurrent or consecutive sentences, requiring the sentencing court to give reasons for its choice.  On further review, we hold the district court must give reasons for imposing a consecutive sentence under section 908.10A and that the reasons given in this case were insufficient.  Accordingly, we vacate the decision of the court of appeals, vacate the sentencing order, and remand the case for resentencing.

And here are snippets from Justice Appel's special concurring opinion in Hill:

In this era of plea bargains, sentencing is often the most critical phase of a criminal proceeding.... But too often in our courtrooms, sentencing is given short shrift by the participants. There often seems to be an assumption that the process that led to the determination of guilt is generally sufficient to inform the court of the necessary information for sentencing....

Once a lawyer has fulfilled the distinct professional responsibilities related to sentencing, the district court must exercise its discretion in setting the sentence. Even in a case that seems less consequential than other matters on a court’s crowded docket, the impact on the parties with a stake in the sentencing decision is substantial and requires a careful, thoughtful discretionary decision by the district court. Sentencing is not a time to cut corners....

The decision regarding whether sentences are served concurrently or consecutively ... is often of great moment and, as the court recognizes, must be made separately from the underlying sentence on each count. A decision to impose a lengthy prison term for the underlying crimes is not the same as the geometric increase in incarceration that may result from a decision to run sentences consecutively. In considering the distinct question of whether to run sentences consecutively or concurrently, the district court must be careful to avoid mere boilerplate recitation and demonstrate an exercise of reasoned judgment.

April 22, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!

Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature."  Here is more:

The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.

In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.

“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”

The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.

The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”

“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”

Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....

Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”

Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”

Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....

The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”

Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”

The official statement and executive order can be found at this link.

As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here.  Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.

April 22, 2016 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Just how should sentencing law deal with a truly habitual petty criminal?

This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.

But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post.  Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":

New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.

The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.

But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.

However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.

Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”

His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.

Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.

Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.

This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal.  Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?

April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Why I refuse to send people to jail for failure to pay fines"

ImagesThe title of this post is the headline of this lengthy recent Washington Post commentary authored by Ed Spillane, the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Here are excerpts:

As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses.  Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.

What to do with these cases?  In Tate v. Short, a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment.  But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules.  As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.

There’s another way, and I’ve been experimenting with it in my own courtroom.

There are no firm numbers nationally on how many fine-only cases end with the defendants in jail, but figures from particular jurisdictions around the country are grim, if partial.  A 2014 survey by NPR, New York University’s Brennan Center for Justice and the National Center for State Courts showed that in Benton County, Wash., a quarter of people in jail for misdemeanors on a typical day were there for nonpayment of fines and court fees.  (The study also found that civil and criminal fees and fines had increased in 48 states since 2010.)  The percentage of jail bookings in Tulsa involving inmates who had failed to pay court fines and fees more than tripled, from 8 to 29 percent of 1,200 inmates, between 2004 and 2013, according to reporting by the Tulsa World.  Eighteen percent of all defendants sent to jail in Rhode Island between 2005 and 2007 were incarcerated because of court debt; in 2005 and 2006, that amounted to 24 people per day....

Fortunately, courts and judges are not powerless to fix the system.

First, defendants must be allowed to argue economic hardship in an indigency hearing, which is Constitutionally required if a defendant says he or she can’t pay.  It’s unclear how many judges skip these hearings, and practices vary from one jurisdiction to another, but Lauren-Brooke Eisen, senior counsel at the Brennan Center, says there’s no question that some judges aren’t holding them.  “Sometimes it’s not always nefarious,” Eisen says. “They have very full dockets. . . . It can require overtime just to finish their docket for the day. It’s not always a deliberate decision to not hold those hearings.”...

Once a defendant proves indigency, we can also be much more creative in our sentencing than “fine or jail” (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving).  Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help....

Judges can also sentence defendants to anger-management training, classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this.  One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997.  He was so moved by the experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home.  Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station.

And occasionally, as a judge, you can choose mercy.  Roger S. was facing an $800 fine for speeding, driving without insurance or registration and driving with defective equipment.  He also had terminal cancer.  He wrote to me, explaining that he could not afford his treatments, much less what he owed the court. I picked up the phone and called him from court.  He was a little surprised but pleased to be talking to the judge.  After discussing his medical treatment and all of those costs in detail, I waived his fines because of indigency and inability to perform community service, much to his and his family’s relief....

Of course, no matter how many great alternatives judges can provide instead of jail time, if a defendant fails to come to court, he or she won’t be able to hear about them.  Courts must be as accessible as possible, and that starts with allowing children to accompany their parents.  One of the revelations in the Justice Department’s report on Ferguson was that children weren’t allowed in municipal court, which explains why many defendants were unable to appear. Several courts in Texas limit or don’t allow parents bringing their children, even though kids don’t present a problem in my court — maybe because we provide coloring books and toys for them to play with while their parents take care of their cases....

I used to prosecute felonies as an assistant district attorney in Brazos County. During that time, I worked for a year in the intake division.  This drove home a lesson that my boss, the district attorney, had been trying to instill in me: Every case file is an individual whose rights are as important and sacred as mine or those of my family.  The decision to charge or dismiss demands empathy and vigilance. Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again — and keeping someone out of jail is a good way to ensure that happens.  In these cases, it should be possible for defendants to resolve their cases without losing their liberty.

All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do.  An arrest can cost a citizen his or her job, dignity and security.  Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.

April 22, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, April 21, 2016

The latest news about the faltering state of federal statutory sentencing reform

This extended Politico article reports on the state and possible fate of federal statutory sentencing reform in Congress.  The piece is headlined "Time running out for major criminal justice bill; A last-ditch effort is underway to salvage a rare alliance between GOP senators and the White House."  Here is how it starts:

Time is running out to reboot efforts to reform the nation’s criminal justice laws, and supporters of reform are making a last-ditch attempt to enlist vulnerable Senate Republicans in an effort that’s probably one of the few chances to enact major bipartisan legislation during the election year.

The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley of Iowa and Majority Whip John Cornyn of Texas, have quietly courted key GOP senators for weeks to show Majority Leader Mitch McConnell (R-Ky.) they could produce sweeping support for the bill, which would relax some mandatory minimum sentences for nonviolent offenders.  They also want to show they can move the bill relatively quickly on the Senate floor.

Though the bill has languished since it passed the Judiciary Committee in October, its authors have made revisions to satisfy criticisms from some tough-on-crime conservatives that the legislation would prematurely release violent criminals.  Those changes may be winning over some new Republicans.  “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wis.), who is locked in one of the most competitive races this cycle.  “I’m very sympathetic with the bill.”

Yet, the bill’s sponsors have hinted at a formal rollout for weeks, with no official announcement.  Aides said the delay is to buy more time to build support, and they’re targeting Republicans up for reelection this year or senators who haven’t already leveled pointed criticism at the bill, such as Sen. Tom Cotton (R-Ark.).

But time is running short, and other issues are competing for what’s left of it.  The Senate is preparing to restart the moribund appropriations process.  And after the Republican National Convention in July, the chamber will be largely out of commission until the lame-duck session in November and December.

Supporters acknowledge they need to prove to McConnell that there are 60 votes for the measure before the majority leader hauls a bill onto the floor that will cleave the Republican Conference.  “We have a lot of progress made and people saying that we’ve gone in the right direction.  But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday.  “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”

April 21, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Reviewing the SCOTUS week that was and the SCOTUS week to come via SCOTUSblog

In this post last Friday, I (not-so) boldly predicted this current week might be a big one at the Supreme Court for criminal justice developments.  As regularly readers now know, the Justices did not disappoint.  And next week may be more of the same.  Helpfully, the fine SCOTUSblog folks have had all these posts to help us keep track of all the SCOTUS criminal justice action:

I do not feel too guilty cribbing all this content from SCOTUSblog because I wrote the second of these listed posts (the one with the awful pun in the title).

April 21, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans"

The title of this post is the title of this lengthy paper by Kony Kim now available via SSRN. Here is the abstract:

Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans?  To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment.  As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment — and, often, survivors of poverty.

Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions.  My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them.  In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.

In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans?  Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities.  Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.

April 21, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Federal district court declines to consider acquitted conduct at sentencing "based on the implication of Sixth Amendment guarantees"

A helpful reader alerted me to a notable new federal district court opinion handed down yesterday by Judge Mark Mastroianni in US v. Buffis, No. 13-30028-MGM (D. Mass. April 20, 2016) (available for download below).  The full opinion runs only eight pages and federal sentencing fans will want to read it in full. These snippets should highlight why:

The government has filed a motion requesting the court sentence the defendant based on the totality of his misconduct. Specifically, the government is requesting the court sentence the defendant based on charged conduct for which he was acquitted by the jury, several incidents of uncharged behavior, and conduct initially charged but dismissed before trial. The superseding indictment against the defendant charged twelve counts; defendant was convicted of the first count, the twelfth was dismissed, and defendant was acquitted of counts two through eleven. The general nature of the Government’s case against the defendant involves his extortion and theft of funds, while in his role as Chief of Police for the Town of Lee....

The government advocates for legally appropriate sentencing considerations to affect the defendant’s sentence on the one convicted charge. The government’s motive, however, is to sentence the defendant based generally on its belief, after a largely unsuccessful prosecution, that the defendant is a “longtime thief and a brazen liar.”...

[B]road recognition of a sentencing court’s authority to consider acquitted conduct comes from the holding in United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).... The wisdom of interpreting Watts, under Sixth Amendment scrutiny, as even creating an available option for considering acquitted conduct at sentencing has been often questioned....

In Watts, the Court explained that consideration of acquitted conduct is not punishment for that conduct, noting the acquittal did not technically prove innocence, but, rather, is the causal increase of sentence based on the manner of commission of the crime convicted. Watts, 519 U.S. at 154-55. Established law under Watts allows a judge to decline to consider acquitted conduct at sentencing. This court has difficulty reconciling Watts with the burden of proof and presumption of innocence standards, which align an acquittal more naturally with factual innocence than with a guileful avoidance of justice deserving of a penalty. This court, therefore, declines to consider acquitted conduct in this case based on the implication of Sixth Amendment guarantees.

Additionally, under the facts here, I am not satisfied the acquitted conduct has useful relevance to the consideration of the manner in which the defendant committed the crime for which he was convicted. This relevance of the crimes to the manner of commission is the connection emphasized by the court in Watts. 519 U.S. at 154-55. In this case the jury, by special verdict form, indicated the manner it found the defendant to have committed a single act of extortion.

Based on the jury's verdict form, the court knows the manner of commission found by the jury for the only convicted charge. None of the acquitted charges speak to the manner of commission of the extortion. Rather, the acquitted conduct would describe a motive and pattern of scheming and dishonesty to accomplish theft generally. This is unlike relying on acquitted conduct at sentencing to find that a firearm was possessed at the time of a drug crime and connected to its commission. See Watts, 519 U.S. at 154-55; Gobi, 471 F.3d at 313-14. Nor is this a situation like that of a drug case where acquitted conduct could be relevant to the manner of commission by showing the total weight of drugs involved. United States v. Putra, 78 F.3d 1386, 1388-89 (9th Cir. 1996), reversed by 117 S. Ct. 633 (1997).

Download Buffis - Court's sentencing decision

April 21, 2016 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Economists explain "Why Mass Incarceration Doesn’t Pay"

Social-costs-and-benefits-1-638Jason Furman, chairman of the White House Council of Economic Advisers, and Douglas Holtz­-Eakin, a former director of the Congressional Budget Office, have this new New York Times commentary headlined "Why Mass Incarceration Doesn’t Pay." Here are excerpts:

Congress is considering bipartisan legislation to loosen tough sentencing laws. The bill faces resistance from some lawmakers. As economists who differ on many issues, we both agree that cost­benefit analysis provides a useful framework for analyzing complicated questions. And in this case, we agree that the verdict of such analysis is clear: Our sentencing rules are failing and need to be changed.

On the benefit side of the equation, prisons and jails play an essential role in managing violent criminals and reducing crime, particularly helping people in poor communities who are the most likely to be victims of murder, robbery or other violent crimes.

But a general rule in economics — the law of diminishing marginal benefits — applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.

The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeat­offender laws, “three strikes” laws and “truth-­in-­sentencing” laws. Longer sentences do not appear to have a deterrent effect; one study finds, for example, that the threat of longer sentences has little impact on juvenile arrest rates. Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety.

Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor­-market skills and confront substantial obstacles to re­entry after release. A new study finds that each additional year of incarceration increases the likelihood of re­offending by four to seven percentage points after release.

The bottom line: The putative benefits of more incarceration or longer sentences are actually costs. Those costs are not confined to the prison population. Time in prison not only means a loss of freedom, but it also means a loss of earnings, risks to the health and safety of the incarcerated, and prolonged absences from family that can strain marriages and increase behavioral problems in children. The probability that a family is in poverty increases by nearly 40 percent while a father is incarcerated....

Finally, more than $80 billion is spent annually on corrections, or over $600 per household. The annual cost of imprisoning one person averages approximately $30,000 for adults and $110,000 for juveniles, higher than the cost of a year of college. At the federal level, the Bureau of Prisons budget grew 1,700 percent from 1980 to 2010 and now devours more than 25 percent of the entire Department of Justice budget.

There are other tools that can reduce crime more cost­-effectively, including promoting employment and wage growth and investing in education. That is one reason that between 2008 and 2012, a majority of states were able to reduce incarceration and crime. Incarceration plays an important role in promoting public safety, and imposing prison sentences for criminal conduct has moral and practical dimensions. But the criminal justice system should be designed to ensure that the benefits of incarceration exceed the costs. Individuals incarcerated for nonviolent drug crimes — 50 percent of the federal prison population — pose a low risk, and the costs of incarcerating these people outweigh the benefits.

Similarly, since criminal behavior declines and costs increase with age, releasing older individuals who have already served lengthy sentences is also likely to yield net benefits.

April 21, 2016 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Brennan Center provides a (suspect?) "final analysis" of crime in 2015

The folks at the Brennan Center have this new report titled "Crime in 2015: A Final Analysis" authored by Ames Grawert and James Cullen Here is its first page with its summary findings:

This analysis provides final crime data to update the report, Crime in 2015: A Preliminary Analysis. It finds the same conclusions as that report (and its December 2015 update), with slightly different percentages.

The analysis examines crime in the 30 largest cities from 2014 to 2015, with 25 cities reporting data on murder through the end of 2015 and 22 reporting data on crime.  Its findings:

• As shown in Table 1A, crime overall in the 30 largest cities in 2015 remained the same as in 2014, decreasing by 0.1 percent across cities.  Two-thirds of cities saw drops in crime, which were offset mostly by an increase in Los Angeles (12.7 percent). Nationally, crime remains at all-time lows. The data show no evidence of a deviation from that trend.

• Violent crime rose slightly, by 3.1 percent.  This result was primarily caused by increasing violence in Los Angeles (25.2 percent), Baltimore (19.2 percent), and Charlotte (15.9 percent). Notably, aggravated assaults in Los Angeles account for more than half of the rise in violent crime in these cities. There is no evidence of a deviation from the historically low levels of violence the country has been experiencing.

• As shown in Table 1B, the 2015 murder rate rose by 13.3 percent in the 30 largest cities, with 19 cities seeing increases and six decreases. However, in absolute terms, murder rates are so low that a small numerical increase can lead to a large percentage change. Murder rates today are roughly the same as they were in 2012 — in fact, they are slightly lower.

• Final data confirm that three cities (Baltimore, Chicago, and Washington, D.C.) account for more than half (244) of the national increase in murders (Table 1B).  While this suggests cause for concern in some cities, murder rates vary widely from year to year, and there is little evidence of a national coming wave in violent crime. These serious increases seem to be localized, rather than part of a national pandemic, suggesting that community conditions remain the major factor. Notably, these three cities all seem to have falling populations, higher poverty rates, and higher unemployment than the national average (Table 2).  This suggests that economic deterioration of these cities could be a contributor to murder increases there.

These findings are consistent with the FBI’s Uniform Crime Report data from the first six months of 2015. Notably, the Brennan Center’s analysis focuses on major cities, where increases in crime and murder were highest, so this report likely systematically overestimates any rise in crime nationally.

I have in my title primed the question of whether we should look at this data as suspect largely because Bill Otis and others at Crime & Consequences have done a number of posts questioning how the Brennan Center has been analyzing and characterizing 2015 crime data.  Here are some of these C&C posts:

Readers know I am a proponent of "evidence-based" sentencing reform, but they should also know that I fully recognize (and am often eager to highlight) how evidence about both crime and punishment will often be used by advocates in very different ways.

April 21, 2016 in National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

"Slimy Sheldon Silver should serve substantial slammer stint, sentencing statement says"

An awesome, amusing, amazing alliteration about prosecutors' potent politico punishment proposal after federal fraud findings made for too good a title for me not to reuse the headline of this New York Daily News piece.  Here are the serious senetencing specifics:

Disgraced ex-Assembly Speaker Sheldon Silver should serve more than 14 years behind bars for corruption — a longer term than any other state pol convicted of similar crimes, federal prosecutors argued Wednesday.

Silver, a Democrat convicted last November on seven corruption counts, should serve a sentence that reflects the “unprecedented magnitude, duration, and scope of his abuse of power,” Manhattan federal prosecutors said in the sentencing memo.

“It should reflect the immeasurable damage Silver caused to the democratic process and to the public trust. It should punish Silver for the vast harm he has caused and the position of trust that he exploited, deter other elected officials from the temptation towards corruption, and communicate to the public that the rule of law applies even to the most prominent of public officials.”...

Sentencing guidelines for Silver suggest a range from 262 to 327 months — that’s between 22 and 27 years — in a federal lockup. “The guidelines range is high because the United States Sentencing Commission explicitly has recognized the ‘threat to the integrity of democratic processes’ caused by public corruption offenses,” the feds wrote.

Manhattan U.S. Attorney Preet Bharara’s office also said the hefty suggestion stemmed from “the many egregious aspects of the defendant’s crimes — including Silver’s role as a high-level public official, his engagement in multiple corrupt schemes, the millions of dollars in bribe money Silver took in, and his laundering of his crime proceeds.”

Bharara wants Silver, 72, to forfeit the $5.2 million he pocketed in the scheme and cough up “a substantial fine of at least $1 million is appropriate in this case, particularly in light of the defendant’s significant remaining resources and his more than $70,000-per-year pension, paid for by New York State taxpayers.”

Silver’s lawyers maintain in their sentencing memo that Manhattan Federal Judge Valerie Caproni should consider “a term of rigorous community service — whether as an alternative to incarceration, or as a component of an appropriate below-guidelines sentence” due to his age and poor health. "One letter after another — written with full awareness of the jury's verdict - from Mr. Silver's constituents, neighbors, friends, family, fellow Assembly members, and other government officials attest to his outstanding character and unrivaled contributions," they wrote in the memo, filed Wednesday.

Silver's lawyers went on to quote a key staffer who said that Silver "acted with integrity and exhibited a deep, consistent commitment to issues that he felt best served the public interest." They also quoted former Mayor David Dinkins as saying, "Mr. Silver has shown himself to be a person of integrity, committed to working in partnership on the side of New York City's citizenry."

April 21, 2016 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, April 20, 2016

Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case

Dt.common.streams.StreamServerAs reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:

Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.

The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.

The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.

On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.

Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.

The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.

Kenneth Bowen: originally 40 years, now 10 years.

Robert Gisevius: originally 40 years, now 10 years.

Robert Faulcon: originally 65 years, now 12 years.

Anthony Villavaso: originally 38 years, now 7 years.

Arthur Kaufman: originally 6 years, now 3 years.

The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.

April 20, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS

The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors.  Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.  

I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly.  In the meantime, here are a couple of key passages from the majority opinion:

This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....

The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....

In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).

And here is the start of the concurrence authored by Justice Alito:

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.

April 20, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).

Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will.  Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.

April 20, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (9)

"Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution"

The title of this post is the title of this notable new article by Harry Caldwell that I just saw via SSRN. Here is the abstract:

Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity.  They suffer no disciplinary repercussions for their misdeeds.  The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct.  Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.

In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and meter our discipline should the claims be warranted.  As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.

The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others.  The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.

April 20, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Your tax dollars at work?: cost accounting for Aurora theater shooter James Holmes' failed capital trial

As a matter of abstract philosophy, I have struggled for decades concerning my opinion on capital punishment.  But as a matter of modern public policy, I have generally concluded that the death penalty is not a great use of limited resources for most states.  This new Denver Post article, headlined "Aurora theater shooting trial cost taxpayers at least $3 million: Final cost of James Holmes' trial in the Aurora theater shooting likely won't ever be known," reinforces my perspectives in this regard. Here are the details:

Jailing, evaluating and prosecuting the man who committed the Aurora movie theater shooting cost taxpayers at least $3 million, but the final expense of one of the mostly closely watched court cases in Colorado history may never be known. The $3 million tab was compiled by The Denver Post following multiple open-records requests over the past year. It covers the amount spent from 2012 through 2015 specifically on preparing for and seeing through the trial of James Holmes.

Nearly $1.6 million of the cost was covered by federal grants. When including the salaries of judges, prosecutors, sheriff's deputies and other government employees who spent most or all of their time on the case — but who would have been paid regardless — the total cost rises to more than $7 million.

And there's still a big chunk of expense missing from that amount. The state's taxpayer-funded public defenders — who represented Holmes — are not required to disclose what they spend on a case. Doing so, they say, would violate ethics rules and subject poor defendants to lower standards of attorney-client confidentiality. Generally, the office of the state public defender reports having spent nearly $2 million on death-penalty and potential death-penalty cases since July 2002, not including staff salaries.

The theater shooting trial was one of the longest in state history. Prosecutors sought the death penalty, and Holmes, who pleaded not guilty by reason of insanity, underwent two psychiatric evaluations by state-appointed experts — at a cost of more than $600,000 to the state Department of Human Services. Holmes ultimately was found guilty of murdering 12 people and trying to murder 70 more in the July 2012 attack on the Century Aurora 16 movie theater; he was sentenced to life in prison without parole in August.

While the case prompted public debates about the cost of the death penalty and mental health evaluations, the biggest expense that has been reported was for providing victims' assistance services. The Arapahoe County district attorney's office spent nearly $1.2 million on salaries for victims' advocates, travel expenses for victims to attend the trial and other costs. All of those costs were covered by a federal grant.

Arapahoe County District Attorney George Brauchler, whose office published its close-to-final cost figures last week, said the costs were about in line with what he expected. In addition to the federal grant, the state government appropriated about $500,000 to cover trial-related costs for the district attorney's office. He said more than half of what his office spent on the case was spent before the trial even began one year ago this month, and he rejected the criticism that seeking the death penalty ballooned the trial's price tag. Instead, Brauchler said the case was expensive because of the number of victims involved.

The county DA here make a reasonable point that the nature of the crime may be the reason for the considerable expense as much as the nature of the punishment sought. Nevertheless, I believe this case could and would have cost taxpayers a whole lot less if prosecutors had accepted the defense's early offer to plead guilty in exchange for an LWOP sentence. (That LWOP sentences was ultimately achieved in the end after a lengthy and costly capital trial.) Moreover, the costs here include the opportunity costs of having so many Colorado state justice officials (police, prosecutors, judges) working on this case so intensely when there surely were many other Colorado crime and criminals that might have otherwise gotten their attention.

Of course, and I think not to be overlooked in any accounting of general capital costs/benefits, Holmes' defense team likely was only willing to offer to plead guilty and take LWOP because Colorado has capital punishment on its books. Consequently, it would be unfair to suggest abolition of the death penalty will always produce massive savings in major murder cases. But, as regular readers should know, this kind of accounting leads me to suggest, yet again, that states ought to have ways to "delegate" major murders to the feds for more efficient and effective capital prosecutions.

A few (of many) older related posts (with lots of comments):

April 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, April 19, 2016

Taking full stock of the Prez Clinton's punishment legacy by looking at PLRA (and AEDPA and ....)

Though I have enjoyed seeing the 1994 Clinton Crime bill getting lots and lots of attention recently (example here and here), there is so much more to legacy of the "Clinton years" to the full story of US punishment practices.  This new New Republic commentary, headlined "Another Clinton-Era Law that Needs to Be Repealed: The Prison Litigation Reform Act is still trampling on prisoners' legal rights," tells another piece of the story, and here are excerpts:

Signed into law by President Bill Clinton in 1996 as a rider to the annual congressional appropriations bill, the PLRA laid waste to the ability of incarcerated people to bring prison officials to court for violations of their constitutional rights, whether it be racial discrimination, lack of medical care, or brutality by prison guards.  The act was championed as a solution to the thousands of supposed “frivolous lawsuits” by prisoners, with barely any discussion by Congress about its far-reaching effects.

Locked away, those in prison are easily demonized, unable to refute any exaggerations or myths created by those on the outside. One story publicly hyped by members of Congress leading up to the act’s passage had a prisoner filing suit after receiving crunchy peanut butter instead of creamy.  But when a federal judge researched the case later, he found that the issue wasn’t about that prisoner’s taste in condiments, but that the prisoner had never been reimbursed after returning the item.  The price of a jar of peanut butter might seem trivial to those of us on the outside, but most people in prison are poor and are often deeply in debt.  Plus, many prisons overcharge for simple items (the jar of peanut butter cost $2.50, significantly more than the average cost at the time).  Looking back, the PLRA did not solve a problem of “frivolous” litigation, rather it masked and discredited the legitimate claims of people with nowhere else to turn.

Since the PLRA became law, tremendous burdens have been placed on prisoners wishing to file suit for violations of their constitutional rights.  For example, one of the law’s provisions forces you to go through the prison’s administrative complaint procedures before bringing an actual lawsuit.  This can take months. Imagine a prisoner who is in pain and in need of medical treatment, but ignored by prison staff: She must not only file her complaint with the same staff that is denying her treatment, but wait for a refusal, appeal that decision, and only after a judgment on that appeal can she then file a legal case beyond prison walls.  By that time, it may be too late for a court to do anything.

As the title of this post is meant to suggestion, lots of other Clinton-era federal criminal laws and developments, particularly the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Prez Clinton's decision to sign-on to Congress's rejection of the US Sentencing Commission's crack/powder amendment to equalize the guidelines, ought to be a continuing topic of conversation as we consider putting another Clinton in the White House this year.

Prior related posts:

April 19, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"The Meaning of Life in Criminal Law"

Like many sentient beings, I have long wondered about the meaning of life.  Helpfully, this new article by Eldar Haber posted to SSRN, which has the same title as the title of this post, talks throught life's meaning in the context of criminal law. Here is the abstract:

Inflation and deflation change the value of money.  Policymakers have used this rationale to amend legislation fixed to a monetary value.  What is not acknowledged is that increase in life expectancy could also be a form of inflation, and, accordingly, could affect “the value” of nonmonetary sanctions — chiefly, imprisonment and capital punishment. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishment, increase their deterrent value and severity.  Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment.  Nevertheless, although life expectancy in the United States has increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly.  At the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions.  Hence, current criminal punishments have not been recalibrated properly.

This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognizes life expectancy considerations.  It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the United States since independence.  After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to a great extent, support life expectancy considerations.  Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions.  Accordingly, this Article examines consequences of failing to apply life expectancy considerations in practice and proposes modest solutions to overcome this perceived problem.

April 19, 2016 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 18, 2016

Two thoughtful reactions to the quick SCOTUS retroactivity work in Welch

As first noted here, this morning the US Supreme Court ruled in Welch v. United States that its recent significant ruling in Johnson that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague is to be applied retroactively.  I provided my first reaction to the consequential Welch decision in this post, and now I can link to two other thoughtful takes on Welch:

From Steve Sady at the Ninth Circuit Blog here, "Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations"

From Steve Vladeck at PrawfBlawg here, "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"

April 18, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Colorado Department of Public Safety releases "Marijuana Legalization in Colorado: Early Findings"

This new Denver Post piece, headlined "Fewer Coloradans seek treatment for pot use, but heavier use seen," reports on this notable new official state government report from Colorado (which I believe was just released today, but bears a cover date of March 2016). Here is a basic summary via the Denver Post piece:

Colorado's treatment centers have seen a trend toward heavier marijuana use among patients in the years after the state legalized the drug, according to a new report from the Colorado Department of Public Safety. The 143-page report released Monday is the state's first comprehensive attempt at measuring and tracking the consequences of legalization.

In 2014, more than a third of patients in treatment reported near-daily use of marijuana, according to the report. In 2007, less than a quarter of patients reported such frequency of use. Overall, though, the number of people seeking treatment for marijuana has dropped since Colorado voters made it legal to use and possess small amounts of marijuana. The decrease is likely due to fewer people being court ordered to undergo treatment as part of a conviction for a marijuana-related crime.

The finding is among a growing body of evidence that marijuana legalization has led to a shift in use patterns for at least some marijuana consumers. And that is just one insight from the new report, which looks at everything from tax revenue to impacts on public health to effects on youth. Among its findings is a steady increase in marijuana use in Colorado since 2006, well before the late-2000s boom in medical marijuana dispensaries. The report documents a sharp rise in emergency room visits related to marijuana. It notes a dramatic decline in arrests or citations for marijuana-related crimes, though there remains a racial disparity in arrest rates.

But the report, which was written by statistical analyst Jack Reed, also isn't meant as a final statement on legalization's impact. Because Colorado's data-tracking efforts have been so haphazard in the past, the report is more of a starting point. "[I]t is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes," Reed writes, "and this may always be difficult due to the lack of historical data."

It's not just the lack of data from past years that complicates the report. Reed also notes that legalization may have changed people's willingness to admit to marijuana use — leading to what appear to be jumps in use or hospital visits that are really just increases in truth-telling. State and local agencies are also still struggling to standardize their marijuana data-collection systems. For instance, Reed's original report noted an explosive increase in marijuana arrests and citations in Denver, up 404 percent from 2012 to 2014. That increase, however, was due to inconsistent data reporting by Denver in the official numbers given to the state.

Intriguingly, though this lengthy report comes from the Colorado Department of Public Safety, not very much of the report discusses general crimes rates at much length. But what is reported in this report is generally encouraging:

Cross-posted at Marijuana, Law, Policy & Reform

April 18, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Seeing Montgomery and Welch as SCOTUS Teague make-up calls

2000px-Seal_of_the_United_States_Supreme_Court.svgA few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.  Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch

I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive.  But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine.  In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague.  And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."

I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons: 

[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest.  As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).

First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.  

Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose."  I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA.  In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic.  I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.

April 18, 2016 in Assessing Miller and its aftermath, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive

As reported here, just a few weeks ago the Supreme Court heard oral argument in Welch v. United States to address the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.   Justice Kennedy authored this opinion for the Court in its 7-1 ruling, and here is the heart of the opinion's analytical conclusion:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision.

In the wake of the oral argument, I find this substantive ruling not at all surprising. What is a bit surprising, though, is that Justice Thomas not Justice Alito is the sole dissenter. Here is how his dissent gets started:

Last Term the Court held in Johnson v. United States, 576 U. S. ___ (2015), that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” it is unconstitutionally vague.  576 U. S., at ___ (slip op., at 6).  Federal prisoners then sought to invoke Johnson as a basis for vacating their sentences in federal collateral review proceedings.  See 28 U. S. C. §2255(a).

Today the Court holds that Johnson applies retroactively to already final sentences of federal prisoners.  That holding comes at a steep price.  The majority ignores an insuperable procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is no error for us to reverse.  The majority also misconstrues the retroactivity framework developed in Teague v. Lane, 489 U. S. 288 (1989), and its progeny, thereby undermining any principled limitation on the finality of federal convictions.  I respectfully dissent.

April 18, 2016 in Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Sunday, April 17, 2016

"Montgomery's Messy Trifecta"

A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:

Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law.  First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments.  Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.

In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications.  Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.

April 17, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Would Congress be wise to pursue sentencing reform through DOJ spending limitations?

The question in the title of this post is prompted by this recent Reason piece by Jacob Sullum headlined "DOJ Accepts Decision Saying It May Not Target State-Legal Medical Marijuana Suppliers: The feds had argued that a spending rider left them free to shut down dispensaries."  Here are the details:

The Justice Department has abandoned its appeal of a ruling that said federal prosecutors are breaking the law when they target medical marijuana providers who comply with state law.  U.S. District Judge Charles Breyer issued that ruling last October, when he said enforcing an injunction against a state-legal dispensary would violate a spending rider that prohibits the DOJ from interfering with state laws allowing medical use of marijuana.  The Justice Department initially asked the U.S. Court of Appeals for the 9th Circuit to overturn Breyer's decision but later changed its mind, and on Tuesday the court granted its request to withdraw the appeal.

That decision leaves in place Breyer's ruling, which involved the Marin Alliance for Medical Marijuana (MAMM), without establishing a circuit-wide precedent.  Presumably the DOJ worried that the 9th Circuit would agree with Breyer's reading of the Rohrabacher-Farr amendment, which says the department may not use appropriated funds to "prevent" states from "implementing" their medical marijuana laws.  The DOJ argues that prosecuting medical marijuana suppliers, seizing their property, and shutting them down does not prevent implementation of laws authorizing them. Breyer said that interpretation "defies language and logic."

The rider that Breyer considered expired last year, but the same language was included in the omnibus spending bill for the current fiscal year.  If Congress continues to renew the amendment and other courts agree with Breyer's understanding of it, medical marijuana growers and suppliers who comply with state law will have less reason to worry about raids, arrests, and forfeiture actions, although uncertainty will remain in states where the rules for dispensaries are unclear.  For the time being, that remains true in California, although state regulations aimed at clarifying the situation are scheduled to take effect in 2018.

In other words, now that DOJ has (sort-of) accepted a broad reading of the Rohrabacher-Farr amendment, this DOJ spending limitation has (sort-of) achieved indirectly what Congress has been unwilling or unable to do directly, namely authorize states and individuals to move forward with a responsible medical marijuana program without persistent concerns that DOJ may raid and prosecute participants.  Of course, this spending limitation can and will expire if not consistently renewed by Congress.  But still, as this Sullum piece highlights, even a short-term spending limit can end up having some real bite. 

In light of this intriguing "spending limit" back-door form of congressional marijuana reform, I am now wondering if this approach should be pursued sentencing reformers/advocates growing frustrated Congress has not yet been able to pass a significant statutory sentencing reform bill. Though some clever drafting might be needed, I could imagine a provision in a federal budget bill that prohibited the Department of Justice from, say, expending any funds to prosecute a non-violent drug offender using statutes that carry any mandatory minimum sentencing term or  expending any funds to continue to imprison anyone whose prison sentence would have been completed had the Fair Sentencing Act been made retroactive.

My suggestion here might ultimately be more of a Swiftian "modest proposal" than a real suggestion for how real work can get done on sentencing reform in Congress.  Nevertheless, as the prospect of major federal statutory sentencing reform semes to grow ever darker with each passing week, I am ever eager to consider and suggest whatever it might take to turn the enduring bipartisan sentencing reform talk into some consequential legislative action.

April 17, 2016 in Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

An interesting perspective on Virginia's recent capital experiences

Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs.  The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."

Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:

Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky.  Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.

Others shrugged, saying painless deaths are not the goal of the state.  “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill.  When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”

The governor seems to disagree.  “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports.  “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”

McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states.  “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”

Now the question becomes, should the people’s business be conducted covertly?  I can answer that: No, it shouldn’t.

Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven.  According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners.  Both executions and death sentences have dropped sharply since then.

The ultimate penalty is imposed on those who commit the most heinous crimes.  Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto.  He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.

I couldn’t gin up any sympathy for this predator.  Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.

Why all the empty cells on death row?  Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen.  The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.

Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?

April 17, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

"Colorado 8th-graders caught sexting could have to register as sex offenders"

The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:

Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.

The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.

In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.

At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.

Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.

State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."

But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.

A few prior related posts:

April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)

Saturday, April 16, 2016

Privacy gurus: what do you think of (coercive?) plea discussions requiring disclosure of defendant's iPhone password?

I have had the great pleasure of working through the years with a number of super-smart privacy-tech scholars (see here and here).  I am very interested to hear what these folks and others think of this fascinating new story from an NYC federal district court.  The story is headlined "Meth, kiddie porn-dealing dentist has two weeks to give up iPhone password if he wants shot at plea deal, judge says," and here are the interesting details: 

A Manhattan dentist charged with distributing methamphetamines and child pornography has two weeks to decide whether he will disclose to the government the password to his locked iPhone so the FBI can examine the creepy contents, a federal judge said Friday.

Dr. John Wolf has been trying to cut a plea deal with the Brooklyn U.S. Attorney's office, but prosecutors haven't offered a plea agreement until it can be determined whether there is additional criminal evidence on the iPhone. Assistant U.S. Attorney Moira Penza said the iPhone is password protected and the FBI has been trying to unlock the device without asking a judge to order Apple to assist the government.

"We've been considering the possibility that we will just give them the password," defense lawyer Marc Agnifilo told Federal Judge William Kuntz....

Kuntz said he wanted to set a deadline in case there is no agreement. "I don't have to tell you this is a very complicated, contentious issue," Kuntz said Friday. Wolf allegedly traded meth with a drug dealer for dental services, but also had a trove of child porn which he gave to an undercover FBI agent who posed as a pervert. Wolf's lawyer said his client was addicted to meth before he was arrested.

April 16, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"The history of drug criminalization in America is a history of social panics rooted in racism and xenophobia"

Ungass_2016-624x312The title of this post is the subheadline of this new Salon comentary carrying the primary headline "The real reason cocaine, heroin and marijuana are illegal has nothing to do with addiction."  Here is how the lengthy piece gets started:

Looking out at the trail of devastation and death that the heroin epidemic has left in its wake, it’s hard to imagine that not long ago one could purchase the drug from a Sears catalogue.  Heroin was created by German chemists during the late 1890s and marketed through Bayer, the company best known for selling aspirin.  For decades, suburban housewives could peruse pages of flashy advertisements for Bayer Heroin, the cure for sore throats, coughs, headaches, diarrhea, stress and menopause.  In fact, until recently the percentage of Americans using opium-derived medicine was higher at the turn of the 20th century than at any other time in history.

The majority of illicit drugs we see today were once legal, popular and used for medicinal purposes.  Cocaine made its debut in toothache drops marketed to children.  Cannabis was recognized for its ability to relieve pain and nausea long before it became associated with youthful vagrancy.

As the world grapples with the fallout from the War on Drugs — and heads towards UNGASS 2016, a possible opportunity to put things right — it’s important to know the history of these drugs and their journey from medicine to menace. We didn’t suddenly discover that they were far more addictive or dangerous than other medicines.  In fact, the reasons that drugs like heroin, cocaine, marijuana and others are illegal today have far more to do with economics and cultural prejudice than with addiction.

Heroin was the first to fall from pharmaceutical darling to a demonized, black-market street drug.  Long used as a cure for aches and pains, it wasn’t until Chinese immigrants came to the United States to work on the railroads and mines that opium-based products such as heroin were perceived as dangerous.  American settlers were not happy with the Chinese arrivals, who brought with them a cultural tradition of smoking opium for relaxation in the evenings.  The settlers accused the Chinese of “taking our jobs,” and economic resentment morphed into rumors of Chinese men luring white women into opium dens and getting them addicted.  Rumors turned to fear, which turned to hysteria, which politicians seized upon.  In 1875 California passed the first anti-opium law, enforced by raids on Chinese opium dens. Other states soon followed.  The first federal law regulating heroin was the Harrison Act of 1914, which eventually led to its criminalization.

Cocaine was criminalized for similar reasons, only this time the backlash was directed against black Americans.  After the Civil War, economic resentment simmered over the freed slaves gaining a foothold in the economy.  White Southerners grumbled about black men “forgetting their place,” and fears spread about a drug some of them smoked, which was rumored to incite them to violence.  In the early 1900s New Orleans became the first city to slap down laws against cocaine use and the trend quickly spread, dovetailing with efforts in Latin America to criminalize the coca leaf, an ingredient in cocaine, which was used for religious purposes among indigenous populations.

Marijuana was next in the firing line.  During the 1920s, tensions sprang up in the South over the influx of Mexican immigrants who worked for low wages.  By the 1930s, the Great Depression had bred panic among people desperate for work and they directed their angst towards immigrants.  The media began propagating stories about Mexicans and their mysterious drug, marijuana.  The first national law criminalizing marijuana, the Marihuana Tax Act of 1937, passed thanks to a strong push from Harry Anslinger, head of the Federal Bureau of Narcotics, who referred to marijuana as “the most violence-causing drug in the history of mankind.”

While such claims of marijuana inducing violence may sound ridiculous to those of us who know marijuana as a drug that does precisely the opposite, it goes to show that the criminalization of drugs has little to do with relative risk or danger.  Instead, the main impetus for criminalization is fear over certain groups seen as an economic or cultural threat to established America.  Recognizing this fact does not mean ignoring or minimizing the very real harm that drugs can cause.

Most illicit drugs carry risks and serious potential for problematic use.  But so does glue. So do gasoline, cough syrup, shoe polish, paint thinner, nail polish remover, cleaning fluids, spray paint, whipped cream cans, vanilla extract, mouthwash, nutmeg, prescription pills and countless other household items that are not only addictive, but potentially fatal if misused.

April 16, 2016 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission adopts a bunch of (large and small) federal sentencing guideline amendments

Late yesterday before I had to jump on an airplane, I watched online this scheduled public meeting of the US Sentencing Commission where a number of new guideline amendments were formally and unanimously passed by the USSC. The hour-long meeting included a few interesting comments by a few participants, and I was particularly struck by the Chair's comments (available here) that one proposed amendment concerning the animal fighting guideline engendered "more pieces of public comment on this amendment than any in the history of the Commission." (This USSC page with public comments includes this entry that reports that an ASPCA Form Letter was submitted by 48,116 citizens on this front that urges the Commission to act to "ensure higher sentences" for federal animal fighting offenses.)

This press release from the USSC provides this summary of the substantive work done by the Commission yesterday afternoon.  Here are excerpts:

The bipartisan United States Sentencing Commission (“Commission”) voted unanimously to amend the federal sentencing guidelines, including significant changes pertaining to immigration policy, compassionate release and animal fighting.

Based on the Commission’s data and public comment, the Commission voted to amend the illegal reentry guidelines. The promulgated amendment modifies the existing guideline by (1) eliminating the “categorical approach,” which has been a source of widespread complaints by judges, the Department of Justice, and others; and (2) recalibrating the guideline to account for prior criminal conduct in a more proportionate manner.  The newly adopted amendment adds a new tiered enhancement specifically aimed at criminal conduct occurring after a defendant reentered the country illegally, including prior illegal reentry offenses. The current base offense level for illegal reentry offenders will remain the same....

The Commission also amended the federal sentencing guidelines for alien smugglers, enhancing penalties for those who smuggle vulnerable unaccompanied minors.  Today’s amendment also makes clear that a four level sentencing enhancement applies for any smuggling case involving sexual abuse.

Separately, in response to Congressional changes to the Animal Welfare Act, the Commission’s own research and analysis, and nearly 50,000 citizen letters, the Commissioners also voted to strengthen the federal sentencing guidelines to better reflect the cruelty and violence associated with animal fighting offenses.  Specifically, the Commission voted to increase the base offense level for animal fighting offenses from a range of 6 to 12 months to a more serious range of 21 to 27 months.  The amendment also establishes a new, corresponding sentencing guideline range for anyone that attends an animal fighting venture with a minor under 16 years old.

In addition, the Commission strengthened and broadened the criteria for compassionate release with several meaningful changes. Congress charged the Commission with issuing policy statements describing what should be considered extraordinary and compelling reasons for a sentencing reduction.  As amended, federal inmates may be eligible for compassionate release based on four categories relating to medical conditions, age, family circumstances, or other extraordinary and compelling reasons.  The Commission’s action encourages the Bureau of Prisons (BOP) to use its current authority if an eligible offender meets any of the circumstances defined by the Commission’s expanded criteria for compassionate release.

In addition, the Commission voted to resolve certain circuit conflicts, in the area of child pornography, as well as to strengthen provisions pertaining to probation and supervised release.  Finally, the Commission took action on necessary conforming, technical changes in response to recently enacted legislation.

A reader-friendly version of these amendments are available at this link, and I hope in some future posts to highlight the part of these amendments likely to be most consequential in the future.

April 16, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, April 15, 2016

Previewing what could be a big coming criminal justice week at SCOTUS

The folks at SCOTUSblog have this new post about an intriguing Supreme Court development for the coming week:

The Supreme Court, altering its usual agenda, will issue one or more opinions in argued cases on Monday of next week, as well as on the more normal days of Tuesday and Wednesday, according to the Court’s telephonic “hotline” announcing its schedule.  Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks.

The new plan immediately stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action.  Monday will see a large crowd in the courtroom because the case up for argument that day is the major challenge to President Obama’s 2014 revision of immigration policy, in the case of United States v. Texas.

I will leave it to others to speculate what this unusual development might mean amidst a chaotic and high-profile SCOTUS Term. But the simple fact that the Court expects to release opinions on three days next week reinforces my expectation that we will get one or more criminal justice rulings in the coming days. In addition, as these two SCOTUSblog preview posts details, on Tuesday and Wednesday of next week, a couple criminal justice cases are scheduled for oral argument:

On Tuesday, April 19:  US v. Bryant: Argument preview: The right to appointed counsel, tribal-court convictions, and federal domestic-violence statutes collide

On Wednesday, April 20: Birchfield v. North Dakota:  Argument preview: Warrantless DUI tests and the Fourth Amendment      

April 15, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

More praise of my Ohio State students (and Ohio legislators and others) for research on marijuana law, policy and reform

Regular readers are familiar with my periodic collecting of posts from my Marijuana Law, Policy and Reform blog.  And, as highlighted in this prior post, a lot of recent content on that site involve ideas and collections of materials put together by terrific student in my Ohio State College of Law seminar as they gear up for class presentations on an array of fascinating marijuana law and policy and reform topics.  In addition, just as my class is starting to wind down, it seems that the debate over medical marijuana reform is really heating up in Ohio and elsewhere.  This collection of links to recent posts at MLP&P reflect these realities:

April 15, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Supreme Court of Canada declares a one-year(!) mandatory-minimum drug sentence unconstitutional

In the United States, some defendants can and have received mandatory life without parole sentences for drug offenses, and most federal mandatory minimum drug sentences come in 5- and 10-year chunks of required prison time even for first offenders. And, to date, none of these laws have been found constitutionally problematic largely because, back in 1991, the Supreme Court held in Harmelin v. Michigan that the Eighth Amendment's cruel an unusual clause did not preclude Michigan from imposing a mandatory LWOP sentence on a defendant convicted of possessing more than 650 grams of cocaine.

Fast forward a quarter-century and this news about a new Canadian court ruling shows our neighbor jurists to the north have a much different conception of what kind of mandatory drug sentence violates a constitutional provision precluding cruel and unusual punishments.  The article is headlined "Rulings from Canada's top court strike down mandatory minimum sentences for drugs and bail conditions," and here are the basics:

The Supreme Court of Canada has ruled that two key "tough on crime" measures brought in by the previous Conservative government are unconstitutional. In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms. It centres on Joseph Ryan Lloyd, a man with drug addictions in Vancouver's Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.

The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is "much less blameworthy. "

"If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence," the decision reads. "In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment." The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.

The sentence imposed stemmed from the so-called "omnibus crime bill" brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada's criminal justice system, including mandatory minimum sentences for non-violent drug offenders.

On Friday, Prime Minister Justin Trudeau said the Liberal approach to criminal justice is to protect public safety while respecting rights. He said mandatory minimums are appropriate in some conditions, and noted that past Liberal governments have imposed them for certain crimes like murder. "At the same time, there is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far," he said after an event in Waterloo, Ont.

A mandate letter from Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives. "You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system," the letter reads.

In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing. Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs. Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.

The mandatory minimum ruling in R. v. Lloyd can be accessed at this link, and here is one key passage from the majority opinion in Lloyd:

The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.  This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.  If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences.  In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.

Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter.  This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important.  This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.

April 15, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

Making in Oklahoma the modern "conservative appeal against death penalty"

Richard Viguerie has this notable new commentary in an Oklahoma paper headlined "A conservative appeal against death penalty." Here are excerpts:

This election year, Republican and Democratic voters in records numbers agree on something: They distrust political leaders and the political establishment.  That same distrust applies to ambitious prosecutors, who are part of the political establishment.  Too many have been caught cheating to win convictions, withholding exculpatory evidence and using coerced confessions.

The bipartisan distrust of the political establishment is certainly increasing with regard to the death penalty.  The government's troubling track record of exercising its life-ending authority provides ample reason for concern.  Since 1973, more than 155 people have been released from death row because they were wrongfully convicted. Ten were from Oklahoma.  As an anti-abortion, pro-law enforcement conservative who believes in the sanctity of life and society's duty to protect the innocent, I find this unacceptable.

Oklahoma's well-documented wrongful convictions and failure to adhere to established execution protocols have shown that it cannot be trusted with properly carrying out the solemn responsibility of executing inmates. Oklahoma officials might soon compound these known problems by attempting again to execute Richard Glossip, a man who may well be innocent....

Conservatives are the leaders against government abuse and lawlessness. We understand that government can be callous about its errors, which are costly and cause harm to the innocent. When government tries to execute a man who may well be innocent, I believe we have an even higher calling to speak out.

Oklahoma's systemic failures and Glossip's case in particular are emblematic of what is wrong with America's death penalty. The death penalty's problems are a confluence of things that all Americans loathe: a big, broken, costly and dangerous government program prone to mistakes, and with questionable positive benefits.

It was recently announced that a bipartisan group of eminent Oklahomans would be donating their time to a first-of-its-kind review of the Oklahoma death penalty system. I urge all Oklahomans, and especially conservatives, to support the call for a moratorium on the Oklahoma death penalty until this commission has finished its task and made its recommendations.

The death penalty system, where errors are gravest, is prone to flaws and lawlessness like any other government program.

Recent prior related post:

April 15, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, April 14, 2016

California board recommends parole for former "Manson family member" Leslie Van Houten

Though the federal system and a number of states have abolished parole, a number of states still have this method of prisoner release and high-profile cases often provide a reminder of this important reality. And, as highlighted by this new Los Angeles Times article, headlined "Board recommends parole for Charles Manson follower Leslie Van Houten," high-profile parole cases can reach back to crimes committed nearly a half-century ago. Here are the details and some context:

A California review board recommended parole Thursday for former Charles Manson family member Leslie Van Houten, who was convicted in the 1969 killings of Leno and Rosemary LaBianca. The decision was issued following a hearing earlier in the day at the California Institution for Women in Chino.  Van Houten has been denied parole 19 times since she was convicted of murder in the deaths of Leno LaBianca, a wealthy grocer, and his second wife at their Los Feliz home.

After the ruling is reviewed by the parole board's legal team, it will be forwarded to Gov. Jerry Brown, who could decide to block Van Houten’s release.  Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."

The youngest of Manson’s followers, Van Houten, 66, has been considered the least blameworthy member of the group, and has been portrayed by supporters as a misguided teen under the influence of LSD on the night of the killings. A former homecoming queen from Monrovia, Van Houten did not join in the Aug. 9, 1969, killings of Sharon Tate, the wife of film director Roman Polanski, and four others at the Benedict Canyon home that Tate was renting.

But the following day, then-19-year-old Van Houten joined in slaying the LaBiancas. Van Houten and another woman held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca. After Watson stabbed Rosemary LaBianca, he handed Van Houten a knife. She testified to stabbing Rosemary at least 14 more times. The blood of the victims was used to scrawl messages on the walls, as had been done at the Benedict Canyon home.

In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups. At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."...

Van Houten's attorney, Richard Pfeiffer, said he believed the two-member board was most persuaded by her exemplary behavior behind bars. "Since 1980, there were 18 different doctors who did psychiatric evaluations of her. Every single one found she was suitable for parole," Pfeiffer said.

Van Houten told her attorney that she was left "numb" by the decision handed down Thursday. Pfeiffer said he's hopeful that Brown opts to grant her parole. "The opposition to parole has always been the name Manson," he said. "A lot of people who oppose parole don’t know anything about Leslie’s conduct. Her role was bad. Everyone’s was. But they don’t know what she’s done since then and all of the good she’s done."

Last summer, a parole board recommended parole for Manson associate Bruce Davis, who was convicted in the 1969 killings of Gary Hinman and Donald “Shorty” Shea. But in January, Gov. Brown rejected parole for the 73-year-old, stating that “Davis' own actions demonstrate that he had fully bought into the depraved Manson family beliefs.” Davis was not involved in the killings of the LaBiancas, Tate and four others.

April 14, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"

From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States. 

First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:

Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived.  For this crime, Mr. Brooker was given a life sentence with no possibility of release.

Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell.  Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.

At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.

On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.

Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. "  Here is how it starts:

Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.

Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.

Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.

Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world.  But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.

April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Could and should past concussions be a significant mitigator at federal sentencing of white-collar offender?

Books1002defordThe question in the title of this post is prompted by this interesting local article about a high-profile federal sentencing that has been postponed so that the defendant can participate in a study of the long-term symptoms of traumatic brain injury.  The headline of this story is "Ex-Cleveland Brown Reggie Rucker says concussions possibly caused him to steal from nonprofits," and here are the interesting details:

Former Cleveland Browns wide receiver Reggie Rucker indicated Wednesday that he will rely on concussions that he suffered as a football player as a possible explanation for embezzling money from his non-violence groups when a judge sentences him later this year.

Rucker, 68, of Warrensville Heights is participating in a study at the National Institute of Health that is examining the long-term symptoms of traumatic brain injury — something that many current and former NFL players say they suffer from as a result of concussions.

His attorneys asked U.S. District Judge Dan Polster to delay his May 23 sentencing because Rucker has another test to undergo in June.  That test that could prove useful in explaining why Rucker stole about $100,000 from the Cleveland Peacemakers Alliance and other nonprofits, attorney Jack Sammon said at a hearing Wednesday. Over objections from the U.S. Attorney's Office, Polster postponed Rucker's sentencing date until July 14.

"I want to have as much information about Mr. Rucker as I can reasonably get," the judge said.

Rucker pleaded guilty in February to wire fraud and making false statements to the FBI. Prosecutors said Rucker cut thousands of dollars in checks from his nonprofits and withdrew cash from ATMs at casinos across the country.  His actions often placed his agencies in the red leaving many of his outreach worker without paychecks.

Rucker used the money to pay personal expenses, including gambling debts and his mortgage, all while making passionate pleas to the public and government agencies for money for his philanthropic endeavors, prosecutors said.

Michael Hennenberg, an attorney representing Rucker, said the former Browns player suffered seven or eight concussions that he knows of during his 13-year career. Three of those came as a result of blows that knocked him unconscious, the attorney said.

Such injuries are known to cause impulsiveness and compulsiveness, both of which may play into Rucker's crimes, Hennenberg said. "Reggie Rucker is the first person in the country to be examined to determine the full implications of his now-known significant brain injuries," Hennenberg said.

Assistant U.S. Attorney Adam Hollingsworth objected to postponing the sentencing, in part because Rucker has already submitted past medical records that point to possible brain injuries. He also noted that doctors have said a definitive traumatic brain injury diagnosis is not possible until a person dies and an autopsy is performed....

Under a plea agreement he reached with prosecutors, Rucker faces a prison sentence of between 21 and 27 months. He enrolled in the Ohio Casino Control Commission's lifetime irrevocable exclusion program in March, meaning he can no longer legally gamble at casinos in the state. "Mr. Rucker's actions to defraud charitable organizations and line his pockets were conscious decisions on his part, and he will be held accountable for those actions," Mike Tobin, a spokesman for the U.S. Attorney's Office, said in a statement Wednesday.

The guilty plea cemented a fall from grace for Rucker, a beloved football player who made a name for himself by heading organizations that encourage non-violent responses to disputes between Cleveland residents.

Despite the brain injury discussions, Hennenberg stressed that Rucker has accepted responsibility for his actions. He released a document the former football player gave to the U.S. Probation Office on Friday that will be used when the office makes its sentencing recommendation. "I have learned and continue to learn many valuable life lessons as a result of my wrongful conduct that brought me into the criminal justice system," Rucker's written statement reads.

April 14, 2016 in Booker in district courts, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Costs of Pretrial Detention"

The title of this post is the title of this notable new piece authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Spending on U.S. incarceration has increased dramatically over the last several decades.  Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails.  

Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors.  With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release.  There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis.

Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena.  This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants.  The results show that relying on the cost-benefit model provided here, judges could bring significant savings — approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.

April 14, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, April 13, 2016

Federal district judge declines to enjoin "scarlet passport" provision of new federal International Megan’s Law

As reported in this AP piece, a "federal judge declined Wednesday to immediately block a law that requires a marker to be placed in the passports of people convicted of sex offenses against children."  Here is more about a notable first ruling about a notable provision of a notable new federal law:

Since the marker provision has not yet gone into effect, deciding whether to block it over constitutional issues would be premature, U.S. District Court Judge Phyllis Hamilton said. "It is not clear, for example, what form the identifier will take, which citizens will be required to carry a passport with the identifier, or whether the identifier will appear on the face of the passport or will be readable only by a scanner," she said.

Opponents of the marker have called it a "Scarlet Letter" that would wrongly imply that passport holders had engaged in child sex trafficking or child sex tourism and subject them to danger. Janice Bellucci, the attorney challenging the law, said she wasn't sure yet whether she would appeal Hamilton's ruling. Bellucci had requested a preliminary injunction against the law.

Bellucci said the judge missed a primary argument for blocking the law. "It doesn't make any difference what the identifier is and how it's applied to a passport," she said. "The fact is any identifier violates the constitution." Bellucci has said a marker would unlawfully compel speech.

The passport marker is part of the so-called International Megan's Law that President Barack Obama signed in February. It also requires that other countries are notified that registered sex offenders are traveling there. The Department of Justice says the law attempts to address cases where people evade such notifications by traveling to an intermediate country before going to their final destination.

Prior related posts:

April 13, 2016 in Collateral consequences, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Restrictive medical marijuana reforms proposed by Ohio legislature in shadow of broader initiative effort

As a bellwether state with a long history of picking White House winners, I often feel very lucky to be in Ohio in big election years to observe how local, state and national politics surrounding various criminal justice issues play out in the Buckeye State.  But this year, given my particular interest in marijuana reform, law and policy and the coming (brokered?) GOP convention in Cleveland, my Buckeye political and policy cup is already running over.  

I bring all this up today because, as detailed in this new local article, "Ohio state lawmakers release plan to legalize medical marijuana," local GOP legislative leaders in Ohio are now actively peddling an important (but restrictive) medical marijuana reform proposal at the same time the national Marijuana Policy Project is gathering signatures and building a campaign for (much broader) medical marijuana reform in the form of a November 2016 voter initiative to amend the Ohio Constitution.  Here are the basics and latest in these dynamic ongoing Buckeye marijuana reform developments:

Ohio state lawmakers released plans today to legalize marijuana for medical use. The bill being considered would allow doctors to write notes for marijuana for medical use. It would still allow for drugfree workplaces.

People who use medical marijuana, could still be fired from their job, according to the bill.  The bill will not allow for home growing of marijuana.

Doctors would be required to periodically report to the state why they are prescribing marijuana instead of other drugs. Anyone taking medical marijuana under the age of 18 would require parental consent.

Ohio lawmakers are also asking the federal government to change marijuana from a Schedule 1 drug to a Schedule 2 drug.  Hearing will start soon on the legislation and there could be as many as two hearings a week. No word yet on where Gov. John Kasich stands on the legislation.

The move comes as groups start collecting signatures to put an issue on the ballot before voters in November.... [and] polls show that legalizing marijuana just for medical use is popular across the state....

Ohioans for Medical Marijuana, which is backed by a national group, expects to spend $900,000 collecting 306,000 valid voter signatures to qualify for the November ballot.

Cross-posted at Marijuana Law, Policy and Reform (where in coming days I will do some anaylsis of the Ohio bill and reactions thereto).

April 13, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Important drug offender data begging hard normative policy question regarding noncitizen US prisoners

Attachment-1I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals."  The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):

U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....

[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.

As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).

The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.

There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons.  As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.

In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.

In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.

The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population.  Federal drug and immigration enforcement are for now inextricably tied together....

Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.

Reforming drug sentencing laws is one thing.  Releasing criminal aliens back into U.S. interior, is quite another.  The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public.  Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.

This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.

It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.

The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?

Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner.  But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).

April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)

Taking stock of how the continued lack of lethal drug stocks is altering execution dynamics

The folks at The Marshall Project have this effective new review of the state of death penalty states deep into the enduring challenges so many are having finding lethal injection drugs for executions. The piece is headlined "How the Drug Shortage Has Slowed the Death-Penalty Treadmill: Only 4 states are currently carrying out lethal injections, and 10 are considering other methods." Here is the piece's effective accounting (with links from the original):

We’ve determined the status of executions for the 31 states that allow the death penalty, as well as for the federal government. Here is the breakdown:

  • Only four states are currently carrying out lethal injections. Texas, Missouri, and Georgia use a single drug, pentobarbital (Georgia is set to use the drug for an execution on Tuesday). Alabama has scheduled an execution next month, and uses three drugs in its protocol, including midazolam and pentobarbital. The state’s Department of Corrections has refused to divulge the source of those drugs, which were used for an execution in January, the state’s first in two years.

  • Florida has also enveloped its lethal-injection process in secrecy — and may be able to carry it out — but executions are on hold there because of a Supreme Court decision, Hurst v. Florida, which invalidated the state’s rules surrounding how judges hand down death sentences.

  • Three active execution states have drugs that are about to expire (Virginia, Arizona, and Arkansas). Many states have turned to small compounding pharmacies, which make a version of pentobarbital that loses its potency more quickly than the type manufactured by larger companies.

  • Three states (Arizona, Arkansas, and Oklahoma) are tied up in court battles over their drug sources. In Arizona and Arkansas, state officials have said the drugs they have on hand could reach their expiration date before those battles conclude.

  • The difficulty of finding a source of drugs has led Louisiana to halt executions until at least July, and Ohio’s execution chamber will not be in use until 2017. Several of the 11 executions Ohio had planned for this year are rescheduled for as late as 2019. Nebraska is also looking for execution drugs, although the state legislature repealed the death penalty; a public referendum on the punishment is expected in November.

  • Since 2010, the year the drug shortage began to take hold, 17 states and thefederal government have carried out no executions. Five other states (Delaware, Idaho, Mississippi, South Carolina, and South Dakota) have carried out no executions since 2012.

At least 10 states have recently considered other methods of execution, including the firing squad (Utah, Mississippi, Wyoming, South Carolina, Missouri, and Arkansas), the electric chair (Louisiana, Tennessee, and Virginia), and the gas chamber (Oklahoma). Mississippi has considered all three.

April 13, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill

In this post over the weekend, titled "The many challenge of a fully nuanced understanding the Clintons, crime, punishment and the 1994 Crime Bill," I highlighted nearly a dozen articles and commentary to stress that there are many nuances essential to a full understanding of just what the 1994 Crime Bill did (and did not) achieve, and just what has been the role and record of former Prez Bill Clinton (and Prez candidate Hillary Clinton) on criminal justice reforms past and present. And because these stories are so nuanced, and I glad we are continuing to see lots of worthy commentary on these fronts, such as these recent pieces from various sources:

I am very pleased to see this important 20-year-old story is getting some useful attention now as part of the 2016 campaign.  But, for a variety of reasons, I hope attention soon turns to the more recent (very mixed) records of Presidents George W. Bush and Barack Obama on crime and punishment with focused questions to all the remaining 2016 candidates about whether, why and how they will be eager to continue or to change various modern federal criminal justice policies and practices.

April 13, 2016 in Campaign 2016 and sentencing issues, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, April 12, 2016

Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP

The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court.  Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis: 

Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole.  Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole.  On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.

Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense.  We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered.  We also consider, and reject, Pete’s other challenges to his resentencing....

In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before.  Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.”  We disagree with the district court as to all three aspects of its reasoning....

When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives.  At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade.  An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16.  Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733.  Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.

More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D).  Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.

April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

"Accounting for Prosecutors"

The title of this post is the title of this interesting looking new paper by Daniel Richman now available via SSRN. Here is the abstract:

What role should prosecutors play in promoting citizenship within a liberal democracy?  And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy — as opposed to those made by other criminal justice institutions — is a challenge.  Holding others — not just citizens but other institutions – to account is at the core of what prosecutors do.  As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship.  They also can can promote police compliance with legal and democratic norms.  Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy.

After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account.  Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.

April 12, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Interesting alternative sentencing being used in Thailand for drunk drivers

Regular readers know that I have long viewed drunk driving as a much-too-common, potentially-deadly offense that I fear is not regularly punished appropriately to best reduce recidivism and the extraordinary harms to public safety and property that this offense too often produces.  Consequently, I was intrigued to see this new article about a new kind of sentencing being tried for this offense in the Land of Smiles.  The piece is headlined "Thai drunk drivers to do morgue work in 'shock sentencing' strategy," and here are the details:

Drunk-drivers in Thailand will be sentenced to community service in morgues in an attempt to combat the world’s second highest road death rate. The plan to confront offenders with the risks of their actions in starkly morbid fashion was unveiled as the country embarked on its most dangerous time on the roads – the Thai new year holidays.

In a country with a notoriously poor road safety record, the ruling junta hopes the initiative will drive home the message that drink driving and reckless driving is lethal. "Traffic offenders who are found guilty by courts will be sent to do public service work at morgues in hospitals," said Police Col Kriangdej Jantarawong, deputy director of the Special Task Planning Division.

"It is a strategy used to make traffic offenders afraid of driving recklessly and driving while they are drunk because they could end up in the same condition. It is aimed to be a deterrent, a way to discourage people."

The “shock sentencing” strategy was approved by the Cabinet as the kingdom prepared for the extended Songkran new year festivities that formally begin on Wednesday. There is much higher traffic than normal as millions return to their home villages, while the festivities are also marked by heavy consumption of alcohol, including by drivers. Nominal helmet laws for motorcyclists are widely flouted.

The combination means the celebrations are accompanied by carnage on the roads each year. The government’s safety campaign bluntly refers to the holiday week as “The Seven Days of Danger”. The death toll has been increasing in recent years, despite government crackdowns and awareness campaigns. The authorities have also said that they will immediately impound the cars of motorists driving under the influence.

"We originally had community services at hospital wards (for offenders)," said Nontajit Netpukkana, a senior official at the department of probation. "But we think the intensity that comes from working in a morgue will help give those doing community service a clearer picture of what happens after accidents caused by drink driving.”

April 12, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)