Monday, May 4, 2015
Fairer capital fight has Virginia prosecutors fighting for the death penalty less
As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.
UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.
Sunday, May 3, 2015
“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”
The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across. Here is an excerpt from the end of the piece's introduction:
In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.
Section II of this Article provides a brief foundational history of mandated reporting laws in the United States. Section III outlines the increased involvement of the federal government in promoting mandated reporting laws. Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries. Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law. Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas.
May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
The never-aging (and ever-costly) story of ever-aging US prison populations
Today's Washington Post has this extended front-page story about the graying of America's prison populations. This will feel like an old story to regular readers of this blog, but these prison realities will remain timely as more and more offenders "age into" the decades-long sentences that became far more common even for lesser offenses over the last quarter-century. The piece is headlined "The painful price of aging in prison: Even as harsh sentences are reconsidered, the financial — and human — tolls mount," and here are a few excerpts:
Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he’s “stepping on a needle.” He has undergone tests for a suspected heart condition and sometimes experiences vertigo. “I get dizzy sometimes when I’m walking,” says the 63-year-old inmate, Bruce Harrison. “One time, I just couldn’t get up.”...
In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the “war on drugs” of the 1980s and 1990s and who are still behind bars. Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.
Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes. The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs....
“Prisons simply are not physically designed to accommodate the infirmities that come with age,” said Jamie Fellner, a senior advisor at Human Rights Watch and an author of a report titled “Old Behind Bars.”
“There are countless ways that the aging inmates, some with dementia, bump up against the prison culture,” she said. “It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told.”
For years, state prisons followed the federal government’s lead in enacting harsh sentencing laws. In 2010, there were some 246,000 prisoners age 50 and older in state and federal prisons combined, with nearly 90 percent of them held in state custody, the American Civil Liberties Union said in a report titled “At America’s Expense: The Mass Incarceration of the Elderly.”
On both the state and federal level, the spiraling costs are eating into funds that could be used to curtail violent crime, drug cartels, public corruption, financial fraud and human trafficking. The costs — as well as officials’ concerns about racial disparities in sentencing — are also driving efforts to reduce the federal prison population.
For now, however, prison officials say there is little they can do about the costs. Edmond Ross, a spokesman for the Bureau of Prisons, said: “We have to provide a certain level of medical care for whoever comes to us.”
A few (of many) recent and older related posts:
- Examining the sources of an ever-aging US prison population
- New major report documents costs and concerns with aging prison populations
- Big new ACLU report highlights the high cost of high numbers of elderly prisoners
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- Are all states going to need to create old-age prisons?
- The high costs of an aging prison population
- The story of prisons becoming nursing homes in Virginia
- "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
Saturday, May 2, 2015
Considering clemency for federal marijuana offenders and other posts of note at Marijuana Law, Policy and Reform
This new post about a new commentary headlined "Do marijuana prisoners deserve amnesty?" reminded me that I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform. Here is an abridged list of April MLP&R posts that might be of special interest to sentencing fans:
"Re-Examining Juvenile Incarceration: High cost, poor outcomes spark shift to alternatives"
The title of this post is the title of this notable issue brief released this past week by Pew's Public Safety Performance Project. Here is how the document starts and concludes:
A growing body of research demonstrates that for many juvenile offenders, lengthy out-of-home placements in secure corrections or other residential facilities fail to produce better outcomes than alternative sanctions. In certain instances, they can be counterproductive. Seeking to reduce recidivism and achieve better returns on their juvenile justice spending, several states have recently enacted laws that limit which youth can be committed to these facilities and moderates the length of time they can spend there. These changes prioritize the use of costly facilities and intensive programming for serious offenders who present a higher risk of reoffending, while supporting effective community-based programs for others....
In recent years, a number of states have passed laws excluding certain juveniles from being placed in state custody, reflecting a growing recognition of the steep cost and low public safety return of confining juveniles who commit lower-level offenses in residential facilities. Some states also have modified the length of time juveniles spend in custody. Because research shows little to no recidivism reduction from extended stays for many offenders, a handful of states have adopted mechanisms to evaluate youth placements and shorten them when appropriate.
Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence
If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you. Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."
This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:
Whether Webster is “retarded” was the principal issue at his trial and sentencing. He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment. The sentencing hearing spanned 29 days, with abundant evidence. The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation. If Webster is retarded, he is ineligible for the death penalty. Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals. What Webster now wants is still another opportunity to litigate that question. The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges. Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.
Friday, May 1, 2015
Federal indictments and a plea deal in New Jersey "Bridgegate" scandal
As reported in this CNN piece, headlined "Bridgegate: 1 guilty plea, 2 indictments and 'liars'," a couple of federal indictments hit the fan today for officials formerly in the administration of NJ Gov Chris Christie. Here are the basics:
Two senior government officials with ties to New Jersey Gov. Chris Christie were indicted Friday in the scheme to close lanes and create traffic tie-ups on the George Washington Bridge, hours after a former key Christie ally pleaded guilty in the act of political retribution against a mayor who did not back the governor in his re-election campaign two years ago.
Former Christie Deputy Chief of Staff Bridget Kelly and Port Authority Deputy Director Bill Baroni were charged with a total of nine criminal counts, including conspiracy and fraud, U.S. Attorney for New Jersey Paul Fishman said at an afternoon press conference. The charges came after David Wildstein, a former Christie ally and Port Authority appointee, pleaded guilty earlier Friday to one charge of conspiracy to commit fraud on federally funded property and one civil rights violation.
"They agreed to and did use public resources to carry out a vendetta and exact retribution," Fishman said, adding that the scheme "callously victimized the people of Fort Lee," who were just trying to go about their lives.
In her first public comments since the scandal surfaced, Kelly proclaimed her innocence Friday at a press conference and slammed Wildstein and her former colleagues as liars. "David Wildstein is a liar."...
Although the developments deepen the stain the scandal has left on Christie's tenure, Fishman indicated the governor would likely avoid any criminal charges. "Based on the evidence that is currently available to us, we're not going to charge anybody else in this scheme," he told reporters, noting that he would not usually disclose that information. "I say it because the public has a right to know certain things."...
In his plea, Wildstein admitted to using a "traffic study" as a cover for the lane closures and choosing the first day of school to maximize the impact. Wildstein also admitted to purposefully not alerting Fort Lee Mayor Mark Sokolich or the town's police chief, and admitted to intentionally keeping "radio silence" with local officials on the issue....
After the court hearing Friday, Wildstein's lawyer, Alan Zegas, said the government was satisfied with Wildstein's cooperation and reiterated the claim that Christie knew of the closures. "Mr. Christie knew of the lane closures while they were occurring and evidence exists to establish that. That is as much as I can say, as much as I will say at this time," Zegas said.
It is not yet clear whether Wildstein struck a plea deal with prosecutors to give them more information into how the scandal unfolded. But Fishman suggested that Wildstein could benefit from his cooperation, noting that "it is typical" for judges to take into account defendants' cooperation during sentencing.
Fishman also said that the investigation identified other co-conspirators who were not indicted. He declined to name them, but said they could be identified later. He would not elaborate on why those co-conspirators were not indicted.
"Baltimore prosecutor charges police with murder, manslaughter in death of Freddie Gray"
The title of this post is the current headline of this notable breaking FoxNews report. Here are the basics:
Prosecutors charged six Baltimore police officers Friday with crimes ranging from murder to assault in the death of Freddie Gray, the 25-year-old black man whose death last month of injuries apparently suffered in police custody touched off peaceful protests that degenerated into a night of rioting, looting and chaos Monday.
State's Attorney Marilyn Mosby, speaking at a Friday news conference, blasted the six police involved in Gray's arrest on April 12, during which he suffered a broken neck that proved fatal a week later. Mosby said the police had no basis for arresting Gray, who police said avoided eye contact and was carrying a switchblade. One police officer, identified as Caesar Goodson, 45, was charged with second-degree murder, while others were charged with crimes including manslaughter and assault.
"No one is above the law," declared Mosby, who said she comes from three generations of law enforcement and has been on the job for four months.
Recent related posts:
- Inspiring remarks from the new Attorney General in DC ... while Baltimore burns to the north
- David Simon connects Baltimore's woes to the drug war
Iowa faith leaders urge Senator Grassley to move forward with drug sentencing reforms
Last week, US Senator Charles Grassley spoke at the Iowa Faith & Freedom Coalition Forum, and the Faith & Freedom Coalition asserts here that its beliefs are rooted in the view "that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us." If Senator Grassley really shares this view, I would expect him to be significantly moved by this new Des Moines Register op-ed authored by clergy members headlined "Bishops call on Grassley to reform sentencing." Here are excerpts:
As bishops and as Christians, we are called to love and serve all people, share compassion and aid God's most vulnerable children. That is why we were among 130 of Iowa's faith leaders who last week signed a letter [available here] delivered to Iowa Sen. Chuck Grassley, the leader of the U.S. Senate Judiciary Committee. The letter advocates for sentencing reforms that affect men and women in federal prison for non-violent drug offenses.
We abhor the damage and death caused by addictive drugs. Too many Iowa families are in pain because of drug addiction, particularly from heroin. We seek to aid these families and the addicted, by supporting broader access to drug treatment, counseling and medical care. Incarceration is not an appropriate treatment for curing drug addiction.
We believe in accountability for the men and women responsible for selling illegal drugs. Those who are addicted themselves and sell drugs to support their habit should also have access to rehabilitative services. Punishment for distributing drugs is necessary; however, where we seek to influence our elected leaders is in how much punishment is justified.
Under federal law, people convicted of drug offenses are subject to strict mandatory minimum sentences based largely on the quantity of drugs possessed by the defendant. Judges have limited discretion to sentence below a mandatory sentence, even when evidence supports doing so.
For example, Mason City native Mandy Martinson received a mandatory 10-year drug sentence in 2004 for her affiliation with a boyfriend who sold marijuana and methamphetamine. She received an additional five years because two firearms were found in their home. At her sentencing hearing, the judge stated that "the evidence demonstrated that [Martinson] was involved due to her drug dependency and her relationship with [her boyfriend] and that she was largely subject to his direction and control. ... Upon obtaining reasonable drug treatment and counseling and in the wake of what she is facing now, the Court does not have any particular concern that Ms. Martinson will commit crimes in the future." Despite the judge's assessment, he had no choice but to sentence her to 15 years in federal prison.
Martinson remains in prison today, but we believe she has been in prison long enough. She is joined by nearly 100,000 people — most of whom are non-violent — serving excessive sentences in federal prisons for drug offenses. We recognize no simple solutions exist when it comes to protecting liberty and public safety, and crime demands accountability. However, a "lock em' up and throw away the key" philosophy actually undermines both of these values. Mandatory minimum sentences do not allow for consideration of an individual's experiences that led them to crime, nor to consider their age, mental capacity, or ability to learn their lesson and redeem themselves....
As many of chaplains and prison ministry volunteers know, prison overcrowding makes it difficult to operate effective faith-based and other rehabilitation programs that are proven to reduce recidivism and make our communities safer. Finally, there is an intangible expense paid by family members, particularly children, who must cope with the pain and burden of having a loved one incarcerated for far too long. Among the saddest of statistics is that some 10 million young people have had a mother or father — or both — spend time behind bars at some point in their lives.
As Iowans, we are privileged to have Senator Grassley hold unique influence in the trajectory of America's sentencing policy. We hope he will use this authority to enact drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs.
In the meantime, we pray for the thousands of Iowans still behind bars, their families and the many thousands more who will be subject to extreme sentencing policies in years to come if lawmakers choose not to act. Those prayers and our advocacy efforts are the best things we can do for them. Now it is time for our elected leaders to do their part.
I strongly share the view that "the greatness of America lies not in the federal government but in the ... people" and that the "virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us" should inspire the work of all government officials. To that end, if Senator Grassley is truly committed to these virtues, I hope he takes to heart the advice given by these faith leaders to move forward ASAP on "drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs."
Notably, as highlighted in this recent post about recent criminal justice reform essays from GOP leaders, a large number of leading GOP candidates seeking to become president seem to share the view that federal drug sentencing needs to be reformed ASAP. Senator Ted Cruz, for example, has said this is simply a matter of common sense. If that is true, I am not sure what Senator Cruz would call Senator Grassley's seemingly steadfast opposition to various drug sentencing reforms proposals that have garner lots of support from lots of different quarters.
Some recent related posts:
- Highlighting GOP leaders' notable new essays on criminal justice reform
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Senator Grassley again expresses interest in talking about federal criminal justice reform
- Senator Grassley yet again says he is open to some federal sentencing reforms
- Sparring over sentencing reform lingo involving the media and Senator Grassley
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Senators respond to NY Times criticisms of their sentencing work
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Judicial second-thoughts leads to greatly reduced prison sentences for cheating Atlanta school administrators
As reported here a few weeks ago, the judge presiding over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests ordered three of the defendants to serve seven years in state prison. But, as this CNN article reports, now that same judge has reduced their sentences to three years in prison. Here is why:
"I'm not comfortable with it," Fulton County Superior Court Judge Jerry Baxter said of the sentences he handed down to the three defendants April 14. "When a judge goes home and he keeps thinking over and over that something's wrong, something is usually wrong."
Tamara Cotman, Sharon Davis-Williams and Michael Pitts also were ordered Thursday to serve seven years on probation, pay $10,000 fines and work 2,000 hours in community service.
Baxter had come under fire from some community leaders for giving prison sentences to eight teachers and administrators who stood trial and were convicted of racketeering. They'd been accused of taking part in an effort to raise tests scores at struggling schools by erasing wrong answers and putting in correct answers.
Outside of court, Benjamin Davis, the lawyer for Cotman, questioned the judge's rationale in handing down heavy sentences a few weeks ago. "I had never seen a judge conduct himself in that way," he said. "What was going on with Judge Baxter?"
Davis-Williams said she was pleased judge Baxter changed his mind. Her attorney, Teresa Mann, added, "We are happy. We are elated that judge Baxter took the opportunity to reflect." Cotman, Davis-Williams and Pitts, all school reform team executive directors, got the harshest sentences during an April 14 hearing: Seven years in prison, 13 years of probation and $25,000 fines.
Baxter said of his change of mind: "I'm going to put myself out to pasture in the not-too-distant future and I want to be out in the pasture without any regrets."
During the earlier sentencing hearing, Baxter was frustrated when defendants didn't admit their guilt. "Everybody knew cheating was going on and your client promoted it," Baxter said to an attorney representing Davis-Williams. At one point he said, "These stories are incredible. These kids can't read."
At a press conference held April 17, most of the convicted educators insisted they were innocent. "I didn't cheat. I'm not a racketeer," said Diane Buckner-Webb, a former elementary teacher.
All defendants sentenced to prison have appealed and are out on bond. The lower prison sentences given to other defendants -- ranging from one to two years -- have not been reduced....
Of 35 Atlanta educators indicted in 2013, more than 20 took a plea deal. Twelve educators went on trial six months ago, with 11 convicted and one acquitted on April 1. Of the 11 convicted, two took a deal in which they admitted guilt, waived their right to appeal and received much lighter sentences. One defendant was giving birth during the sentencing phase not been sentenced.
On Thursday, Baxter urged the defendants to engage in community service while they're appealing. He said that might lighten the punishment if the convictions are upheld. The judge said he was tired of dealing with the Atlanta Public Schools cheating scandal, which he referred to as "this mess."
"I'm ready to move on. So, anyway, adios," Baxter said, and ended the hearing.
Notably, under federal law, a judge is not legally permitted to change a sentence based only on subsequent second thoughts about the appropriateness of the sentence. I have long understood (though not always thought wise) that a federal judge gets only one bite at the sentencing apple, and I would love to hear from commentors whether they this is it just and appropriate to let sentencing judges adjust sentences in the way and for the reasons done in this state case.
Prior related post:
"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"
The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years. Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive:
On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....
In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.
Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....
But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.
Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...
Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....
The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.
In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.
Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.
Thursday, April 30, 2015
New proposal for National Criminal Justice Commission garnering notable support
This official press release from the office of Senator Lindsay Graham highlights a notable new federal bill to create a notable new federal commission with a notable mission that already has some notable supports. Here are excerpts from the press release:
U.S. Senator Lindsey Graham (R-South Carolina) has cosponsored the National Criminal Justice Commission Act of 2015, bipartisan legislation that would create a National Criminal Justice Commission to review the criminal justice system from top to bottom and propose reforms to address serious issues facing our nation's criminal justice system.
The legislation would establish a 14-member, bipartisan National Criminal Justice Commission charged with completing an 18-month, comprehensive review of the national criminal justice system, including federal, state, local, and tribal criminal justice systems, and with issuing recommendations for changes in oversight, policies, practices and laws to reduce crime, increase public safety, and promote confidence in the criminal justice system. The Commission would be made up of Presidential and Congressional appointees, including experts on law enforcement, criminal justice, victims' rights, civil liberties, and social services.
"This is a long overdue measure," said Graham, Chairman of the Judiciary Committee's Crime and Terrorism Subcommittee. "The men and women representing law enforcement understand the need for this legislation, and I appreciate them pushing Congress to move forward on this important issue. I think the nation will be better off with this essential top-to-bottom review of the most pressing issues facing our nation's criminal justice system."...
The National Criminal Justice Commission Act of 2015 is supported by a broad coalition of criminal justice organizations, including law enforcement, crime victims, and criminal justice reform advocates.
Endorsements for the National Criminal Justice Commission Act of 2015 include:
Jonathan F. Thompson, Executive Director and CEO of the National Sheriffs' Association said: "The National Sheriffs' Association applauds Senators Peters, Graham and Cornyn for introducing this bill to establish a National Criminal Justice Commission. We believe it is in the best interest of the nation to have a transparent system going forward."...
Association of Prosecuting Attorneys President and CEO David LaBahn said:
"The Association of Prosecuting Attorneys - the only national prosecutors association to represent and support prosecutors and their deputies at the local, county, state and federal level - strongly supports the introduction of the National Criminal Justice Commission Act. It has been 50 years since there was a holistic review of the national criminal system and this effort is long overdue. We applaud Senators Peters, Graham and Cornyn for the introduction of this crucial legislation."
Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank
A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here). This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:
The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).
The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.
The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand. The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.
In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.
What does new Prez candidate Bernie Sanders have to say about criminal justice reform?
As reported in this new AP article, headlined "Vermont Sen. Bernie Sanders announces 2016 presidential run," Hillary Clinton now has some official competition for the Democratic nomination for president. But, as highlighted by the question in the title of this post, while Sanders "enters the race as a robust liberal alternative to Hillary Rodham Clinton," it is entirely unclear what he thinks about various state and federal criminal justice reforms being discussed and debated nationwide. Here are excerpts from the AP article concerning Sanders' plans for his campaign:
[H]e pledged to do more than simply raise progressive issues or nudge the former secretary of state to the left in a campaign in which she is heavily favored. "People should not underestimate me," Sanders said. "I've run outside of the two-party system, defeating Democrats and Republicans, taking on big-money candidates and, you know, I think the message that has resonated in Vermont is a message that can resonate all over this country."...
Sanders said he would release "very specific proposals" to raise taxes on wealthy Americans and corporations, as well as offer tuition-free education at all public colleges and universities. He touched on his past opposition to free-trade agreements, his support for heavier regulations of Wall Street and the nation's banking industry, and his vote against the Keystone XL oil pipeline as a preview of his campaign.
In a quick review, I could not find any discussion of any sentencing issues on Sanders' Prez campaign site or Senator webpage, and I cannot recall any notable comments by him on any significant criminal justice reform issues. For that reason (and others), I continue to think that an array of GOP candidates more so than any Democratic candidates are most likely to push Candidate Clinton on criminal justice issues.
Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues
The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits. The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:
For a moment last year, it looked as if the Obama administration was moving toward a history-making end to the federal death penalty. A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.
At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering. Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.
But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since. Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.
“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review. The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”
In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change. He lamented its racial disparities and the risk of executing innocent people. He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.
Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-year-old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.
As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners. Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....
Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-death penalty movement would stoke conservative support for capital punishment at a time when some libertarian-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.
Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.
Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available. Other states are reviving plans to use the electric chair or gas chambers.
Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon. Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.
Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.
In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.
Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.”
The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.
I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences. Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.
April 30, 2015 in Baze lethal injection case, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
Wednesday, April 29, 2015
Candidate Clinton laments mass incarceration, but proposes only a "national debate" to address it
I have now had a chance to read this full text of Hillary Clinton's big policy speech on criminal justice reform delivered today at Columbia University (previewed here). If forced to summarize my reaction in a word, I would probably go with ... MEH.
The Clinton speech included plenty of heart-felt expressions of existing problems because, in Clinton's words, "we have allowed our criminal justice system to get out of balance." She also claimed to have past legal experiences that enabled her to "see how families could be and were torn apart by excessive incarceration." But despite staying that it was "time to change our approach [and] to end the era of mass incarceration," Clinton provided no concrete (or even not-so-concrete) proposals that could help chart a new approach that would help end the mass incarceration era.
Though the Clinton speech merits a read in full, here are some excerpts from Clinton's comments on "how we approach punishment and prison":
It's a stark fact that the United States has less than 5 percent of the world's population, yet we have almost 25 percent of the world's total prison population. The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.
Of the more than 2 million Americans incarcerated today, a significant percentage are low-level offenders: people held for violating parole or minor drug crimes, or who are simply awaiting trial in backlogged courts. Keeping them behind bars does little to reduce crime. But it is does a lot to tear apart families and communities....
Without the mass incarceration that we currently practice, millions fewer people would be living in poverty. And it's not just families trying to stay afloat with one parent behind bars. Of the 600,000 prisoners who reenter society each year, roughly 60 percent face long-term unemployment. And for all this, taxpayers are paying about $80 billion a year to keep so many people in prison....
If the United States brought our correctional expenditures back in line with where they were several decades ago, we'd save an estimated $28 billion a year. And I believe we would not be less safe. You can pay a lot of police officers and nurses and others with $28 billion to help us deal with the pipeline issues.
It's time to change our approach. It's time to end the era of mass incarceration. We need a true national debate about how to reduce our prison population while keeping our communities safe.
I don't know all the answers. That's why I'm here — to ask all the smart people in Columbia and New York to start thinking this through with me. I know we should work together to pursue together to pursue alternative punishments for low-level offenders. They do have to be in some way registered in the criminal justice system, but we don't want that to be a fast track to long-term criminal activity, we don't want to create another "incarceration generation."
Recent related post:
- Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”
Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol
Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols. It starts this way:
For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.
On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.
That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”
And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.
But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:
Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.
The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.
The full oral argument transcript is available at this link.
Recent related posts:
- Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
- "The Supreme Court Is About to Decide the Future of Lethal Injections"
David Simon connects Baltimore's woes to the drug war
The Marshall Project has this interesting new feature interview with David Simon, under the headline "David Simon on Baltimore’s Anguish: Freddie Gray, the drug war, and the decline of 'real policing.'" The full piece merits a full read, and here is how it gets stated:
David Simon is Baltimore’s best-known chronicler of life on the hard streets. He worked for The Baltimore Sun city desk for a dozen years, wrote “Homicide: A Year on the Killing Streets” (1991) and with former homicide detective Ed Burns co-wrote “THE CORNER: A YEAR IN THE LIFE OF AN INNER-CITY NEIGHBORHOOD” (1997), which Simon adapted into an HBO miniseries. He is the creator, executive producer and head writer of the HBO television series “The Wire” (2002–2008). Simon is a member of The Marshall Project’s advisory board. He spoke with Bill Keller on Tuesday.
BK: What do people outside the city need to understand about what’s going on there — the death of Freddie Gray and the response to it?
DS: I guess there's an awful lot to understand and I’m not sure I understand all of it. The part that seems systemic and connected is that the drug war — which Baltimore waged as aggressively as any American city — was transforming in terms of police/community relations, in terms of trust, particularly between the black community and the police department. Probable cause was destroyed by the drug war. It happened in stages, but even in the time that I was a police reporter, which would have been the early 80s to the early 90s, the need for police officers to address the basic rights of the people they were policing in Baltimore was minimized. It was done almost as a plan by the local government, by police commissioners and mayors, and it not only made everybody in these poor communities vulnerable to the most arbitrary behavior on the part of the police officers, it taught police officers how not to distinguish in ways that they once did.
Probable cause from a Baltimore police officer has always been a tenuous thing. It’s a tenuous thing anywhere, but in Baltimore, in these high crime, heavily policed areas, it was even worse. When I came on, there were jokes about, “You know what probable cause is on Edmondson Avenue? You roll by in your radio car and the guy looks at you for two seconds too long.” Probable cause was whatever you thought you could safely lie about when you got into district court.
Then at some point when cocaine hit and the city lost control of a lot of corners and the violence was ratcheted up, there was a real panic on the part of the government. And they basically decided that even that loose idea of what the Fourth Amendment was supposed to mean on a street level, even that was too much. Now all bets were off. Now you didn't even need probable cause. The city council actually passed an ordinance that declared a certain amount of real estate to be drug-free zones. They literally declared maybe a quarter to a third of inner city Baltimore off-limits to its residents, and said that if you were loitering in those areas you were subject to arrest and search. Think about that for a moment: It was a permission for the police to become truly random and arbitrary and to clear streets any way they damn well wanted.
"The Supreme Court Is About to Decide the Future of Lethal Injections"
The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states. However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case. Here is how the piece starts:
How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?
Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.
In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.
Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.
Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.
Recent related post:
Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”
As reported in this Los Angeles Times article, all the media chasing around a notable presidential candidate are about to have a meaty and timely criminal justice reform story. The headline of the LA Times piece is "Hillary Clinton to call for end to 'mass incarceration'," and here are excerpts:
Hillary Rodham Clinton will call Wednesday morning for far-reaching reforms in the criminal justice system that would “end the era of mass incarceration,” according to a campaign aide.
In a speech at Columbia University in New York City, Clinton will address the violence in Baltimore with plans for a new approach to punishing criminals, according to the aide, who requested anonymity because the proposal is not yet public.
The speech will mark the unveiling of Clinton’s first major policy proposal as a presidential hopeful, coming as candidates are under pressure to confront the unrest in Baltimore. The city erupted in rioting Monday night, following the funeral of Freddie Gray, an African American man who was mortally injured while in police custody.
The plan also appears to stem from the “listening tour” Clinton has been on since launching her campaign this month. In roundtable meetings with voters in the early-voting states of Iowa and New Hampshire, the drug issue played prominently. Clinton said at the meetings that she was alarmed by the stories people relayed to her about how drugs are infecting rural communities.
She began talking about her proposal at a campaign fundraiser in New York City on Tuesday night, a gathering of about 150 supporters who donated $2,700 each. “It’s heartbreaking,” Clinton said of Baltimore. “The tragic death of another young African American man. The injuries to police officers. The burning of people’s homes and small businesses. We have to restore order and security. But then we have to take a hard look as to what we need to do to reform our system.”
Clinton said the nation must “reform our criminal justice system.” As she called to end mass
incarceration for nonviolent offenders, donors erupted in applause. In Wednesday’s address, Clinton will also join the chorus of politicians demanding that police officers everywhere be equipped with body cameras. Clinton will argue they are necessary “to improve transparency and accountability in order to protect those on both sides of the lens,” according to the aide.
The sentencing reforms Clinton plans to champion focus on nonviolent offenders. They would include shifting those found guilty of drug crimes from lockups to drug treatment and rehabilitation programs. Other alternative punishments would also be explored for low-level offenders, particularly minors. Mental health programs would get a boost in funding.
“She will also discuss the hard truth and fundamental unfairness in our country that, today, African American men are far more likely to be stopped and searched by police, charged with crimes and sentenced to longer prison terms,” the aide wrote in an email.
I am going to be off-line for most of the rest of today, but I am going to be very eager to learn about (and blog about) late tonight the specifics of what Candidate Clinton is going to be advocating in order to end the era of mass incarceration. I am hoping that the full Clinton plan will be somewhere on this Clinton campaign official website, though it is right now hard to find anything substantive on that website.
Based on this press report, it sounds as though she is not going to be advocating too much more than what nearly all the other presidential candidates, including all the Republican candidates, have been talking about for some time. Moreover, a genuine understanding of how best to "end the era of mass incarceration" has to include some account for how the policies of President William Clinton contributed significantly to that era. But perhaps, rather than already expect to be disappointed, the new Clinton plan will have something at least as bold as what GOP candidate Rand Paul has been proposing already for a number of years.