Monday, February 16, 2015
Notable new commentary on the notable work of the Colson Task Force
A helpful reader shared with me this notable commentary authored by Jim Liske, who is CEO of Prison Fellowship and is serving on the Charles Colson Federal Corrections Task Force. The FoxNews piece is headlined "Colson Task Force offers chance for Restorative Justice," and here are excerpts:
I am honored to serve on the new Charles Colson Task Force on Federal Corrections, which met for the first time in late January. Named for my organization’s founder, the Task Force is a bipartisan, nine-member panel chaired by J.C. Watts, that will address long-existing challenges in federal corrections and make data-driven recommendations to make the system more effective and just—for the sake of prisoners and our communities alike....
In the last several years, individual states have already begun to pursue prison reform that hold offenders accountable and yet give them hope for restoring their lives once they’ve served their time. Hawaii has seen success through its HOPE program, which guarantees “swift and sure sanctions” for those who violate the terms of their probation. This accountability-intensive approach, which affirms offenders’ potential by expecting them to do better, has been so effective, it’s being copied in courtrooms nationwide. Some states are increasing their use of earned-time credits, which allow people to earn the right to rejoin the community earlier by using their time productively, and still others are reducing sentences for non-violent offenses.
Reforms like these offer hope for evidence-based, cost-effective changes the Task Force will examine. But we can go a step farther. The time is right for prison reforms that aren’t just evidence-based, but values-based, reflecting our beliefs in the God-given dignity, value, and potential of every human being. Justice can be restorative when we make sure that the opportunity for both accountability and redemption are balanced at the core of our criminal justice system.
Why should justice be restorative? At its heart, crime isn’t about law-breaking; it’s about violating the peace and wholeness of the entire community. Public safety may require that we lock someone up, but that alone will not heal victims or the community or change the conditions that help breed crime. When the responsible party has the opportunity for redemption and restoration — by making amends to his victims, changing his thinking, and earning back the public’s trust by living a law-abiding, constructive life upon release—the community can find healing and move beyond the vicious cycle of crime and incarceration....
The Charles Colson Task Force is an important first step that honors the legacy of a visionary leader, but the challenges facing our criminal justice system cannot be solved by this group alone. It’s time for everyone with a stake in criminal justice and public safety—which is all of us—to call for reforms that elevate and prioritize victims’ voices, provide genuine opportunities for prisoners’ moral rehabilitation, and engage the entire community in breaking the cycle of crime.
We all need to speak up to create the kind of restorative society, based on the dignity and value of every life, that each of us wants to call home.
Prior related post:
Sunday, February 15, 2015
The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:
Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment. Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.
Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.
Friday, February 13, 2015
ACSBlog conducting "symposium on racial inequalities in the criminal justice system"
I just noticed that the ACSBlog early this week kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." Here are excerpts from this introductory post:
[R]acial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color. There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.
The result is that Americans of color face disadvantages at every stage of the criminal justice system. From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white....
Whether due to racial hatred, implicit bias or economic inequality, there is overwhelming evidence that criminal defendants of color are subjected to a different criminal justice system than white defendants. For the next two weeks, ACSblog and a succession of experts will examine flaws at each stage of the criminal justice system and propose solutions so that the Constitution’s guarantee of equal justice under the law may be realized for every American.
Here are links to the posts in this series that have been published so far:
Pennsylvania Gov declares moratorium on state death penalty
As reported in this local piece, headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa.," there is some headline-making news about capital punishment administration emerging from the Keystone State:
Gov. Tom Wolf declared a moratorium Friday on the death penalty in Pennsylvania, potentially halting the process for 186 prisoners who've received a death sentence. Since 1693, the commonwealth has executed 1,043 prisoners, the last of which was Philadelphia torture killer Gary Heidnik in 1999. That execution took place, in large part, because Heidnik gave up his right to appeal.
In a statement released Friday, Wolf said the state's current death penalty is "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."...
Wolf's first action was a temporary reprieve to Terrance Williams, who was scheduled to be executed on March 4. Williams was convicted of two murders he committed as a teenager in 1984. "Today's action comes after significant consideration and reflection," Wolf said. "This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes."
Shortly after Wolf's announcement, Sen. Daylin Leach, D-Montgomery, said he reintroduced his bill Friday to abolish the death penalty altogether. "I am extremely grateful that our governor will stop spending our tax dollars to, in the words of former US Supreme Court Justice Harry Blackmun, tinker with the machinery of death," he said, in a written statement.
Gov. Wolf's detailed four-page statement justifying his decision today is a fascinating read (which I am going to make my sentencing students read and re-read). The full statement is available at this link, and here are excerpts:
Pursuant to authority granted in Article IV, § 9 of the Constitution of Pennsylvania, I am today exercising my power as Governor to grant a temporary reprieve to inmate Terrence Williams. A death warrant for this case was signed on January 13, 2015 by my predecessor, acting pursuant to Section 4302 of the Pennsylvania Prisons and Parole Code. The execution was scheduled for March 4, 2015.
The reprieve announced today shall remain in effect until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment (established under Senate Resolution 6 of 2011), and any recommendations contained therein are satisfactorily addressed. In addition, it is my intention to grant a reprieve in each future instance in which an execution is scheduled, until this condition is met....
There are currently 186 individuals on Pennsylvania’s death row. Despite having the fifth largest death row in the nation, the death penalty has rarely been imposed in modern times. In the nearly forty years since the Pennsylvania General Assembly reinstated the death penalty, the Commonwealth has executed three people, all of whom voluntarily abandoned their right to further due process.
In that same period, Governors have signed 434 death warrants. All but the three noted above have subsequently been stayed by a court. One inmate has been scheduled for execution six times, each of which has been cancelled due to a state or federal appeal. Two inmates have remained on death row for more than three decades. This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences. The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.
While the pace of the process frustrates some, the fail-safes of appellate review are essential in avoiding a catastrophic miscarriage of justice. Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania....
If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania’s sy stem is riddled with flaws, making it error prone, expensive, and anything but infallible....
[A]administering the death penalty, with all the necessary legal appeals and safeguards as well as extra security and individual cells on death row, is extremely expensive. A recent analysis conducted by the Reading Eagle estimates that the capital justice apparatus has cost taxpayers at least $315 million, but noted that this figure was very likely low. Other estimates have suggested the cost to be $600 million or more. The Commonwealth has received very little, if any, benefit from this massive expenditure.
"Pick a stat, any stat. They all tell you the same thing: America is really good at putting people behind bars."
The title of this post is a line from the start of this detailed analysis of incarceration rates and crime by Oliver Roeder, a senior writer for FiveThirtyEight. The piece merits a full read, and here are excerpts from the start and end of the piece:
There are 2.3 million Americans in prison or jail. The U.S. has 5 percent of the world’s population but 25 percent of its prisoners. One in three black men can expect to spend time in prison. There are 2.7 million minors with an incarcerated parent. The imprisonment rate has grown by more than 400 percent since 1970.
It’s supposed to help the country reduce crime in two ways: incapacitation — it’s hard to be a habitual offender while in prison — or deterrence — people scared of prison may do their best to not end up there. But recent research suggests that incarceration has lost its potency. A report released this week from the Brennan Center for Justice at the New York University School of Law finds that increased incarceration has had a very limited effect on crime over the past two and a half decades. At incarceration’s current elevated levels, the effect of more incarceration on crime is not statistically different than zero. It’s no longer working....
[C]rime trends are complicated. Surely no one is complaining about the recent decline, but no one fully understands it either. One thing is becoming clear: Increased incarceration’s role was minimal.
Recent related post:
Texas sentencing jury finally brings needed sanction to recidivist drunk driver
A helpful reader, knowing I have long expressed concern about under leniency often shown to dangerous repeat drunk drivers at sentencing, altered me to this notable state sentencing story out of Texas. The story, headlined "Texas man sentenced to two life terms after 10th DWI," reinforces my view that juries can sometimes be wiser than judges at sentencing:
Bobby Gene Martin’s brushes with law reinforcement for driving drunk date to 1981. But this week, his 30-year streak of DWI arrests came to an abrupt end.
A Texas jury convicted the 64-year-old of his 10th drunk driving offense along with a retaliation charge for threatening to harm the arresting officer and his family. They gave him two life sentences.
The jury came back with its guilty verdict after three hours of deliberation. And throughout the proceedings, the jury had no idea that Martin had already been arrested nine other times for drunk driving. They only knew that this was at least his third. “You could see they were actually shocked that he’d had 10 DWIs and was still out and about driving around,” Montgomery County Assistant District Attorney Kyle Crowl said.
Martin was also convicted of threatening to kill the arresting deputy, his wife, his children and his mother, according to the prosecutor. It also wasn’t the first time he had made such threats, Crowl noted. During a 1999 incident, Martin was accused of threatening to kill the officer who arrested him and “everything he ever loved.”...
Martin will be 80 before he is eligible for parole, according to Crowl.
UPDATE: I just noticed this Houston Chronicle article which asserts that Bobby Gene Martin is the "33rd [Texas] inmate serving life in state prison for drunk driving" as a result of multiple drunk driving convictions. Though I do not know Texas law well, I presume that most (if not all) of these recidivist drunk drivers were given these life sentences by juries and that they are eligible for parole at some point like Bobby Gene Martin. I make this point because it highlights some contrast between these recidivist alcohol offenders and the hundreds of recidivist drug offenders serving life without parole in federal prison due to a mandatory LWOP statutory minimum sentencing term.
Is a federal judge about to declare unconstitutional federal marijuana law? And then what?
The question in the title of this post is prompted by this Reuters report on an on-going federal criminal trial in California. Here is why:
A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.
Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.
"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.
The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.
In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.
Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.
But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."
Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.
Cross-posted at Marijuana Law, Policy and Reform
"The Perils of Overcriminalization"
The title of this post is the title of this new Heritage "Legal Memorandum" authored by Michael Mukasey and Paul Larkin. Here is its abstract:
Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest. Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws. In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured.
Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress — itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success. If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.
Thursday, February 12, 2015
New Brennan Center report asks "What Caused the Crime Decline?"
This press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?". This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:
Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law. In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings:
Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.
State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.
Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.
During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars. During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.
“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder. “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”
“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary. “The prison explosion has been very expensive. A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”
“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword. “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”
Cato director explains why "2015 Can be the Year of Criminal Justice Reform"
The quoted portion of the title of this post is the title of this extended commentary by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice. Here are excerpts from the start and end of the piece along with its major headings:
Criminal justice reform appears to be one of the hot topics this year. Unlike most other policy areas, where President Obama and Republicans remain at loggerheads, criminal justice reform holds much greater promise since both political parties seem to agree that there are festering problems that need to be addressed.
Let’s explore some of the most pressing topics.
Civil asset forfeiture....
Indigent defense reform....
The political climate for criminal justice reform is superb. Present low crime rates provide space for policymakers who are inclined to address this compelling need. If there is no movement on reform now, we will all look back on 2015 as a lost opportunity.
Spotlighting the administrative challenges posed by high-profile capital cases
This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado. Here are excerpts:
Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.
The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....
Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.
The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”...
Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and posttraumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.
Recent and older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- "James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"
- Highlighting (already extraordinary) costs of seeking to put Aurora killer on death row
Wednesday, February 11, 2015
District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader
This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:
A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."
Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.
Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...
Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.
Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.
February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)
Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process
The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders. Here is how the majority opinion concludes:
We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution. Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution. We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.
Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:
When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....
The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.
Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.
"Incarceration’s Front Door: The Misuse of Jails in America"
The title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:
Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.
The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay courtimposed costs.
The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modernday debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.
While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.
“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”
The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.
Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses. As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.
Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail. The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring. Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.
Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.
Update on a decade-long (lack of) effort (not) to fix lethal injection in California
California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much. This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:
What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.
Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.
Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”
California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.
In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters. Many adopted one-drug protocols. Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs. Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....
In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.
As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.
New bipartisan federal prison reform bill introduced (with good chance of passage?)
This article from The Hill, headlined "Senators unveil prison reform bill," reports on the latest iteration of a bipartisan federal criminal justice reform proposal. Here are the details:
Two members of the Senate Judiciary Committee are reintroducing a prison reform bill they say will achieve a major goal of criminal justice reformers: reducing the size of the federal inmate population. Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.) pushed the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act at a press conference Tuesday.
The law is meant to reduce the number of people — currently just over 210,000 — incarcerated in federal prisons. The package proposed by the two senators takes a more moderate approach to reducing prison populations than other proposals that would implement reductions to mandatory sentences. It also supports programs that help prisoners avoid returning to crime after being released.
Prisoners would undergo a risk assessment to determine whether they present a low, medium or high risk of committing another offense. Prisoners determined to have a low or medium risk of offending again would be eligible to earn time off of their sentences by participating in recidivism reduction programs, including drug counseling or vocational training, a release from Whitehouse’s office said.
In total, prisoners can earn 25 percent of their sentence off through the law. The bill, though, prevents certain types of prisoners, like those serving time for sex offenses or terrorism, from benefiting from the law. "We want to go forward with what's passable without subjecting the bill to the kind of Willie Horton-type critique that it might receive,” Whitehouse said of the decision not to have the law cover some types of prisoners....
Cornyn and Whitehouse said they are open to debating additional measures, including changing the mandatory minimum sentences for nonviolent drug crimes. But they touted their measure as a good starting point for a larger conversation about criminal justice. “This is a debate that we welcome,” Cornyn said when asked whether sentencing reform could conceivably be added to the bill. “There's a lot of things we can do to improve our criminal justice system, and there's a lot of it being discussed. Things like mandatory minimums, sentencing reform, over criminalization, particularly of the regulatory environment. There are a lot of things we can do better.”
"Given the new open amendment process in the United States Senate, anybody who's got a good idea and 60 votes — 59 plus theirs — can offer it by way of an amendment," he added.
Whitehouse said that having a criminal justice bill moving through the Senate could buoy other ideas for reforming the criminal justice system. "I think if this bill proves to be a catalyst for further legislation in the area of sentencing reform and criminal justice reform, John and I would have no objection to that,” he said....
Some, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), have been reluctant to support changes to the mandatory sentences. But Grassley recently expressed an openness to having his committee consider the idea in an interview at a conservative event last month.
As the title of this post highlights, I have little idea if this CORRECTIONS Act has a real chance at passage. But I am keeping my fingers crossed.
February 11, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Tuesday, February 10, 2015
Two notable Second Circuit opinions upholding aggravated sentencing decisions
A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy. Here are links to the rulings along with an excerpt from the start of the opinions:
United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):
Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine. Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment. Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.
United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):
Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual section 2G1.3(b)(3) for use of a computer in the commission of the crimes. This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.
ABA resolution calls for elimination of juve LWOP in the United States
As reported in this Robina Institute press release, yesterday "the American Bar Association (ABA) approved a resolution calling for an end to the practice of sentencing children to life-in-prison-without-parole and urging meaningful periodic opportunities for release.” Here is more from the press release:
The United States stands alone in permitting sentences of life without parole for juveniles. It is the only country other than Somalia that has not yet ratified the Convention on Rights of the Child, which prohibits life without parole sentences for children. Passage of this resolution signals the ABA’s commitment to reforming U.S. juvenile sentencing laws and aligns with recent rulings by the U.S. Supreme Court affirming that children are “constitutionally different” from adults, and that because children have diminished culpability and greater prospects of reform, they should not be routinely subject to our nation’s harshest penalties.
“With the adoption of Resolution 107C, the American Bar Association has sent a clear message to the legal community and policymakers across the country that children should never be sentenced to die in prison,” said ABA President, William C. Hubbard. “As the world’s foremost leader and defender of human rights, the United States should ban life without parole sentences for children — a severe violation of human rights. The ABA applauds those states that have already taken steps to reform their laws and urges other states to pass similar reforms as soon as practicable.”
“For any one individual, if over time that person continues to pose a significant risk to public safety, a life sentence may be appropriate,” said Robina Institute Executive Director Kelly Mitchell. “What this resolution is saying is that the moment of sentencing is not the time to make the judgment that a person is forever irredeemable.”
The control and administration of the ABA is vested in the House of Delegates, which is the 560-member policy-making body of the association. The House of Delegates meets twice each year, at ABA Annual and Midyear Meetings. Action taken by the House of Delegates on specific issues becomes official ABA policy.
The full text of ABA Resolution 107C and its assoiated report is available at this link.
As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:
Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.
"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.
The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.
Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.
A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.
Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
Monday, February 9, 2015
"Inside The Koch Campaign To Reform Criminal Justice"
The title of this post is the headline of this new Huffington Post piece that reviews a modern sentencing-reform story that is surely becoming familiar to regular readers of this blog. Here are highlights from the piece which seem to add a few new elements:
Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.
In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture. Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.
Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago. The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.
"We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum," Booker told HuffPost in an email. "To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission -- that includes Republican members of Congress and other leaders I've begun to work with like Newt Gingrich, Grover Norquist and Charles Koch's team."...
The Kochs have outlined five pillars for reform: The right not to be prosecuted for accidentally breaking the law; fair treatment under the law; competent and fair representation; mandatory minimum reforms; and restoration of rights.
When Koch Industries leaders talk about criminal justice, they at times sound like bleeding-heart progressives. Holden, for example, called civil forfeiture practices, where police seize assets from someone accused of a crime, "a huge, grave injustice." He also praised Attorney General Eric Holder for taking a stand against the practice, and worried about the longterm consequences of the U.S. prison system. "[S]omeone makes a mistake sometimes and it falls on the rest of their life, because they can't get a job, they can't vote, can't get a loan, that type of thing,” he said....
[O]organizations that work on criminal justice reform say they believe the Kochs' efforts are sincere and not monetary. "I think there are some people that worry perhaps the Kochs might be prioritizing things like environmental crime, or crimes more likely to impact white people with means," said Alison Holcomb, the national director of the ACLU’s Campaign to End Mass Incarceration. "My experience so far has been that they are genuinely interested in the issues across the board."
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incarceration
- Big talk from Charles Koch about big (money) criminal justice reform efforts
- Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos