Wednesday, June 28, 2017

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Trump Administration says it "strongly supports" latest Kate’s Law to increase penalties on illegal reentry

The Trump Administration yesterday released this (unusual?) "statement of administration policy" concerning a bill in the House of Representatives known as Kate's Law. Here is its full text:

The Administration strongly supports H.R. 3004, Kate’s Law. This bill commemorates Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The alleged shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.

H.R. 3004 would increase the penalties that may be imposed on criminal aliens convicted of illegal reentry, deterring reentry and keeping criminal aliens off our streets. The bill is consistent with the Administration's broader efforts to strengthen enforcement of our immigration laws and improve the security of our Nation's borders.

If H.R. 3004 were presented to the President in its current form, his advisors would recommend that he sign the bill into law. 

Notably, as this White House statement indicates and as detailed in this recent Cato commentary by David Bier titled "Kate’s Law: A Waste of Federal Resources," the latest version of Kate's Law (H.R. 3004, available here) does not include the five-year mandatory minimum prison term that has appeared in some prior versions of "Kate's Law."  Rather, the version that the Trump Administration now "strongly supports" serves to raise the maximum prison term for various illegal reentry offenders with particular criminal histories.  Consequently, I do not think this version of Kate's Law would really have too much of an impact on too many illegal reentry cases.  In turn, advocates of federal sentencing reform who are justifiably concerned about great more use and reliance on federal mandatory minimum sentencing provisions should be pleased to see a version of Kate's Law apparently gaining steam that does not include any new mandatory minimum sentencing provisions.

One last cheeky comment combined with a final observation about this statement from the Trump Administration.  I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform."  I decided not to use such a post title because, though I think it would be in many ways accurate, the phrasing would have a "fake news" quality to it.  Modern conversations about and references to "federal sentencing reform" are generally about lowering possible prison terms, not increasing them.  Moreover, the Obama Administration in various ways at various times over the course of the two terms did express support for federal sentencing reform.

That all said, I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform," because this statement on Kate's Law showcases the kind of express and aggressive support that a White House can (and I think should) put behind criminal justice reform legislation it supports.  Though I am certain Prez Obama and his team worked behind the scenes in various ways and gave various speeches to support various sentencing reform efforts, I do not recall the Obama team ever issuing any formal "statement of administration policy" like this one from the Trump team in support of any particular sentencing reform proposal in Congress.  Of particular note, especially if we consider parallel points in a first Term, Prez Obama to my knowledge never formally expressed support from the White House as President in 2009 for bills in Congress that sought to completely equalize crack and powder cocaine sentencing (though the Holder DOJ did testify in support of complete equalization in front of the then Democratically controlled Congress).

UPDATE: I just now have seen that Attorney General Jeff Sessions is also adding his voice in support of Kate's Law via this official statement which includes these passages:

Countless families and communities have suffered as a result of these ‘sanctuary’ policies, which undermine federal law by safeguarding criminal illegal aliens from federal law enforcement. One victim of these policies was Kate Steinle, who was killed by an illegal alien who had been deported five times and yet still walked the streets freely. Her death was preventable, and she would still be alive today if only the City of San Francisco had put the public’s safety first. How many more Americans must die before we put an end to this madness?

Kate’s Law and the No Sanctuary for Criminals Act would penalize criminal illegal aliens who break our laws and the jurisdictions that attempt to shield them from justice. These bills can restore sanity and common-sense to our system by ending abusive attempts to undermine federal law, and they can prevent future tragedies by empowering law enforcement.

June 28, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

Impressive refreshment of Restoration of Rights Project

CcrcIn this post nearly five years ago, I noted the creation by the National Association of Criminal Defense Lawyers (NACDL) of a terrific on-line resource profiling the law and practice in each US jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  Now, as detailed in this news release, this resource has gotten an impressive new update. Here are the details via the release:

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.  Jurisdictional "profiles" cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Each jurisdiction's information is separately summarized for quick reference.

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.  We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

The resources that comprise the Restoration of Rights Project were originally published in 2006 by CCRC Executive Director Margaret Love, and the profiles and comparison charts have expanded over the years to broaden their scope and to account for the many changes in this complex area of the law.  The project has recently been hosted by CCRC and NACDL, and its resources have been published in the treatise on collateral consequences published jointly by NACDL and Thompson Reuters (West).

Project resources have now been re-organized into a unified online platform that makes them easier to access, use, and understand.  The short "postcard" summaries of the law in each state -- which serve as a gateway to more detailed information -- have also been reviewed and revised to provide a more current and accurate snapshot of applicable law in each state.

The Project is intended as a resource for practitioners in all phases of the criminal justice system, for courts, for civil practitioners assisting clients whose court-imposed sentence has exposed them to additional civil penalties, for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

The Restoration of Rights Project is available now at: http://restoration.ccresourcecenter.org

June 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

"Cashing in on Convicts: Privatization, Punishment, and the People"

The title of this post is the title of this notable new paper by Laura Appleman available via SSRN. Here is the abstract:

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities.  This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society.  Criminal justice privatization severs an essential link between the people and criminal punishment.  When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability.

This Article shows what we lose when we allow private, for-profit entities to take on the traditional community function of imposing and regulating punishment.  By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system. 

June 28, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, June 27, 2017

SCOTUSblog begins symposium on OT 2016 death penalty decisions

I will not likely remember the Supreme Court term just completed, October Term 2016, as especially notable for sentencing developments.  There were no big blockbuster sentencing cases, although the Beckles vagueness ruling was certainly consequential and a few other rulings will surely launch a few law review article.  And, of course, in the intricate and endlessly litigated world of the death penalty, a mixed bag of smaller SCOTUS rulings still add up to something worth watching (especially with the added bit of uncertainty that comes with Justice Gorsuch replacing Justice Scalia).

Helpfully for those who just cannot get enough of the SCOTUS capital docket, the folks over at SCOTUSblog have this new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."   Here are links to the four pieces already up at SCOTUSblog, and I surmise more be coming:

June 27, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Will Trump Use Science to Fight Crime?"

The question in the title of this post is the headline of this notable new piece by Ted Gest at The Crime Report, which reports on what some criminologists had to say at a recent event about crime fighting in the Trump Administration.  Here are excerpts:

Leading criminologists expressed cautious optimism yesterday that President Trump will embrace evidence-based practices in his administration’s war on crime.

Laurie Robinson, who advocated the use of science in justice as an Assistant Attorney General in the Obama administration, declared, “I do not think the [criminal justice] field is turning back” on evidence-based programs. Robinson, now a member of the criminology faculty at George Mason University, said that officials “on the front line have to know what works, and how to pay for it.” She noted that bipartisan justice reform plans had been approved in recent years in such conservative states as Georgia, Louisiana and North Dakota.

Her comments came at the annual gathering sponsored by the Center for Evidence-Based Crime Policy at the George Mason campus, in northern Virginia near Washington, D.C.. The session opened with a discussion on the “Progress of Evidence-Based Crime Policy in the Last Three Decades.”

Some critics have expressed doubt that the new administration will base policies on scientific evidence, noting Trump’s professed disbelief in global warming and Attorney General Jeff Sessions’ advocacy of tough-on-crime practices that studies have found ineffective....

Denise O’Donnell, who headed the Justice Department’s Bureau of Justice Assistance under Obama, said many U.S. policing leaders have concluded that “there is power in data.” She cited such developments as the use of public opinion surveys by police departments in formulating policies on officers’ body-worn cameras.

James Burch, a vice president of the Washington, D.C.-based Police Foundation and a former Justice Department official, offered a “qualified yes” to the question of whether evidence-based criminal justice practices will continue under Trump. Burch said he detected a “different tone” in discussions among police chiefs and sheriffs at national conventions in recent years. Law enforcement officials are asking themselves “how do we hold ourselves accountable?” he said....

Speakers pointed out that in opening a national “summit” on crime reduction and public safety last week, Sessions said that in a new national “Public Safety Partnership” involving 12 localities, the Justice Department will provide “diagnostic teams” to “assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors.”

June 27, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 26, 2017

SCOTUS denies cert on Wisconsin case with defendant challenging risk-assessment sentencing

I had thought I had reported on all the blog-worthy action in the the Supreme Court on this busy day via prior posts here and here and here ... until one of my favorite colleagues alerted me to the fact that today's SCOTUS order list also included a denial of cert in Loomis V. Wisconsin.  This local press article discusses thie cert denial under the headline "Supreme Court refuses to hear Wisconsin predictive crime assessment case."

As some may recall from some prior postings, Loomis concerned a due process challenge to the use of risk-assessment instruments at sentencing.  And, as noted here, the Supreme Court was interested enough in this issue to invite the Solicitor General to file a brief expressing the views of the United States.  But now it seems SCOTUS was not quite yet ready to take up this interesting and important issue in this case.

Some prior related posts on Loomis case:

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Should Ohio automatically release inmates if prisons too crowded?"

The question in title of this post is the headline of this Columbus Dispatch article which somewhat imperfectly describes one somewhat notable provision of a huge criminal justice revision proposal in the Buckeye State. Here is the context:

A proposed sweeping rewrite of Ohio’s criminal laws includes a provision that would allow the state to release hundreds of low-level, nonviolent inmates when the prison population hits 47,000. The state prison population last week stood at 50,093 — 3,093 above that threshold.

That change is among hundreds recommended by the Ohio Criminal Justice Recodification Committee, which on June 15 completed a two-year task of rewriting the entire state criminal code. The result is a 4,017-page bill submitted to the General Assembly. The committee composed of judges, legislators, prosecutors, law-enforcement officials and others voted 18-2 to recommend the overhaul.

Other changes include the return of a version of “bad time” for inmates who misbehave in prison, reduced add-on sentences for crimes committed while in possession of a gun, expanded opportunities for offenders to obtain drug treatment in lieu of prison, and an increase in the theft amount that triggers a felony charge to $2,500.

Created by the legislature, the committee was charged with “enhancing public safety and the administration of criminal justice.” The last time criminal laws were overhauled was 1974, although some statutes date to 1953 and have been “effectively superseded or contradicted” by new layers of laws. The committee’s recommendations need the approval of the legislature.

Judge Frederick D. Pepple of Auglaize County Common Pleas Court, chairman of the committee, said he’s pleased with the overall report. “These improvements make the system better and could save hundreds of millions of dollars. When I stand back and look at it, without getting into every nitty-gritty detail, I’m satisfied.”

Pepple said the rewrite cut down the length of the code by nearly 25 percent, mostly by condensing language. More important, Pepple said the changes would “significantly improve the quality of justice and better protect the people of Ohio ... We tried to make it readable and understandable so people know what is against the law.”

Franklin County Prosecutor Ron O’Brien was one of two committee members, along with Clark County Prosecutor Andy Wilson, to vote against the package. O’Brien said that while he agreed with most of the recommendations, several were deal breakers, including the prison-release provision, which he said would be like “Bastille Day every day.” O’Brien said he disagreed with granting “unilateral authority to reduce prison population.”

The provision would be triggered when the total prison population exceeds 43,500 men and 3,500 women for at least 30 days in a row. At that point, the director of the Department of Rehabilitation and Correction would “direct the parole board to select from those who are eligible for overcrowding parole release a sufficient number of prisoners to be released within thirty days to maintain the inmate population at less than 43,500 for males and 3,500 for females. No more than five hundred male inmates and five hundred female inmates may be released per month pursuant to this section.” The board would select inmates for release “who present the least threat to the public, including the victims and their families,” and those who have committed nonviolent and non-sex-oriented crimes.

In a statement to The Dispatch, Gary Mohr, director of the Department of Rehabilitation and Correction, said he voted for (but did not propose) the overcrowding release provision. However, he said he prefers a method built into the current state-budget proposal to divert nonviolent drug offenders to community treatment “to avoid the potentially lifelong collateral consequences of coming to prison.”...

Ohio Senate President Larry Obhof, R-Medina, praised the committee. “How this group of experts from varying political viewpoints worked together over the last two years speaks volumes about their commitment to pursuing reforms within Ohio’s criminal-justice system.” Holly Harris, executive director of the U.S. Justice Action Network, said that if the rewrite of criminal laws is adopted, “Ohio is ready to take another leap forward on reforming their justice system.”

June 26, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

House Oversight Committee schedules hearing this week on "Criminal Justice Reform and Efforts Reduce Recidivism"

Via a Twitter reference, I just saw that the Full House Committee on Oversight and Government Reform has now scheduled a hearing under the title "Criminal Justice Reform and Efforts Reduce Recidivism."  Other than this official calendar notice, I know nothing about this event or whether it suggests anything significant for any congressional criminal justice reform efforts.  But even without yet knowing more about what is leading to this House hearing, the very fact of a hearing with this "pro-reform" title provides some encouraging news for anyone concerned that Congress was not even going to keep discussing possible criminal justice reforms.

June 26, 2017 in Who Sentences? | Permalink | Comments (0)

Narrow ruling on Bivens case and rearguments now coming on two notable others

The Supreme Court's action on litigation involving the President's travel ban and a ruling for a church are certain to dominate headlines and SCOTUS analysis for the days to come.  But sentencing fans will not want to entirely overlook some lower-profile developments that also unfolded at SCOTUS this morning on three cases with criminal justice components.  In order to cover a lot of ground quickly, I will borrow language from Crime & Consequences and SCOTUSblog concerning what the cases concerned and what SCOTUS did:

The three cases:  Jennings v. Rodriguez (involving bond hearings for aliens detained pending deportation); Sessions v. Dimaya (concerning whether provisions governing an alien's removal from the United States, is unconstitutionally vague based on Johnson); Hernandez v. Mesa (civil case arising out of a shooting by a border patrol agent across the southern border) .

Today's action per SCOTUSblog: "Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision."

This USA Today piece, headlined "Supreme Court punts on cross-border shooting, two immigration cases," provides more particulars and context.

June 26, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS rules IAC of appellate counsel in state postconviction proceedings does not excuse procedural default

Resolving a technical and important issue, the US Supreme Court this morning in Davila v. Davis, No. 16-6219 (S. Ct. June 26, 2017) (available here), refused to extend some inmate-friendly habeas jurisprudence. The opinion for the Court in the 5-4 ruling was authored by Justice Thomas and it begins this way:

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground.  A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.  An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule.  That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim — ineffective assistance of trial counsel — in a single context — where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim — ineffective assistance of appellate counsel. We decline to do so.

The dissent authored by Justice Breyer and joined by the other more liberal justces begins this way:

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim.  See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief).

But there are equitable exceptions. In Martinez v. Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 569 U. S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” id., at 429; (2) in the state “‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14.

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial counsel).

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

A bit of criminal justice interest in last big SCOTUS order list of Term

The last big Supreme Court order list of OT16 is available here, and an assortment of cert grants and denials, summary opinions and concurrences and dissents are notable.  For criminal justice fans in particular, the denial of a big Second Amendment case out of California and some discussion around the GVRs in a few cases seem especially noteworthy.  And the discussion around the (partial) reversal of an erroneous mandatory minimum crack sentence in Hicks v. US will merit its own posy later today because of some of the comments by the newest Justice.  But first we have some more merits opinions coming (and I have to catch a plane, so perhaps commentors can review anything I missed in transit).

June 26, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, June 23, 2017

Senate Judiciary Chair Grassley still talking up the prospects for federal statutory sentencing reform

This notable article from the Washington Free Beacon reports on some notable remarks by a critical member of Congress concerning federal sentencing reform.  The article is headlined "Sen. Grassley: Criminal Justice Reform Still on the Table," and here are excerpts:

Sen. Chuck Grassley (R., Iowa) believes that his criminal justice reform agenda, unsuccessful under the Obama administration, still has bright prospects, in spite of the less reform-friendly administration of President Donald Trump. Grassley, chairman of the Senate Judiciary committee, spoke at the American Enterprise Institute on Thursday morning about the Sentencing Reform and Corrections Act (SRCA), a bipartisan bill he first brought up in the last Congress....

"Long prison sentences always come with a cost. A cost to the taxpayers, a cost to families, and to our communities," Grassley said. "In many ways, and in many cases, the severity of the crime justifies these costs. But as we're all aware, that isn't always the case. Hence, the movement for sentencing reform."

The SRCA is meant to address these concerns through a number of approaches, Grassley said. These include expanded "safety valves" for non-violent offenders; a reduction in mandatory minimums for some drug crimes; and a reduction in sentences for offenders who complete programs designed to reduce recidivation. Grassley suggested that while the SRCA had the support of the Obama administration, the Trump White House, which has promised to "make America safe again," may be less friendly to the legislation.

"Obviously, the dynamic is different with a new president," Grassley said, but added that he was nonetheless "confident" about the SRCA's prospects. "We're looking forward to input from the administration" on the SRCA, Grassley said. "We had the support of the Obama administration. I think we have a chance of getting the support of this administration."

"I know that there is both support and opposition within this White House," Grassley said. "I certainly believe that it is consistent to be tough on crime and still support sentencing reform."

"We've been working since November to see what avenues we can have to move this bill along, particularly working with the executive branch of government. I'm confident about its prospects," he said....

Grassley criticized Sessions's comments that the administration would go back to pre-Obama sentencing discretion. "I'm not going to condemn people for finding fault with what Attorney General Sessions did when he spoke about going back to the pre-Obama, pre-Holder sentencing prosecutorial discretion that he gave to his U.S. Attorneys, that it was the wrong way to go. I could even say that I think it was the wrong way to go," he said.

Sessions opposed Grassley's bill when he was in the Senate. According to the Brennan Center for Justice, Sessions "personally blocked" the 2015 SRCA; he also, along with several of his colleagues, authored one of a series of op-eds opposing the bill. Sessions wrote an opinion piece for the Washington Post in June in which he insisted more stringent sentencing was needed to curb surging violent crime. He also attacked those who claimed incarceration was driven largely by low-level, nonviolent drug offenders.

Grassley, however, said Sessions' priorities need not conflict with the SRCA. "There doesn't have to be anything incompatible with what he's doing, with what we're trying to do, because what we do is give people that have been sentenced unfairly, and they feel it, and their lawyers feel it, another bite at the apple, by going before a judge to plead their case, that their sentence ought to be shorter," Grassley said.

Helpfully, the American Enterprise Institute has this webpage with a video of the event at which Senator Grassley spoke, and he had a lot more to say than what is quoted above.

June 23, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c). The Commission also intends to release a series of publications updating the data in the 2011 report.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

SCOTUS decides defendant can show prejudice from bad plea advice and prevail on Sixth Amendment claim even with no defense to charge

The Supreme Court this morning handed down three more opinions, and the one notable criminal case decided today was Lee v. United States, No. 16–327 (S. Ct. June 23, 2017) (available here). The Chief Justice wrote the opinion for the Court, which starts and ends this way:

Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.  Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident.  His attorney assured him there was nothing to worry about — the Government would not deport him if he pleaded guilty.  So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.

Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country.  Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment.  Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result....

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial?  Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  See id., at 6.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence.  Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S., at 59.

Justice Thomas wrote a dissent joined by Justice Alito which gets started this way:

The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea.  Neither the Sixth Amendment nor this Court’s precedents support that conclusion.  I respectfully dissent.

June 23, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, June 22, 2017

Are federal judges already getting a little tougher at sentencing in the Trump era?

The question in the title of this post was my first thought after looking through this new federal sentencing data released by the US Sentencing Commission today.  The data that really caught my eye is on Table 12, which shows that in the most recent quarter (running from January 1 to March 31), less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range (19.9% to be exact), and 2.9% of cases involved a judge-initiated departure/variance above the guideline range.  The last time that less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range was in the fourth quarter of 2013, and I do not believe there has ever been a quarter in which so many cases involved an above-guideline sentence.

Because federal sentencing data moves always around a bit from quarter-to-quarter, and because case-load mixes can vary from quarter-to-quarter, these small statistical changes I have noticed here may just be a coincidental blip rather than a reflection of the impact of tough-on-crime talk from the Trump Administration and its Department of Justice.  (Nevertheless, because the federal system currently sentences over 16,000 cases per quarter, even small statistical changes represent hundreds of defendants.)  We will have to see in subsequent USSC data runs whether this new pattern of fewer below-guideline sentences and more above-guideline sentences persists.

Critically, the period covered by this USSC federal sentencing data predates the May issuance by Attorney General Jeff Sessions of new charging and sentencing guidance for federal prosecutors.   I find it notable and interesting that federal judges may have already been responding in some (small) sentencing ways to the tough-on-crime talk from the Trump Administration even before AG Sessions formally toughened up federal prosecutorial policies and practices.

June 22, 2017 in Criminal justice in the Trump Administration, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Today's SCOTUS CJ scorecard: government wins in two procedural cases, defendant wins in one substantive case

The Supreme Court this morning handed down opinions in three cases, all three of which involve intricate criminal law and procedure issues. I am going to copy and tweak here the summary of all the action from How Appealing for ease of exposition: 

1. Justice Elena Kagan delivered the opinion of the Court in Maslenjak v. United States, No. 16-309. Justice Neil M. Gorsuch issued an opinion, in which Justice Clarence Thomas joined, concurring in part and concurring in the judgment. And Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. 

2. Justice Stephen G. Breyer delivered the opinion of the Court in Turner v. United States, No. 15-1503. Justice Kagan issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. 

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Weaver v. Massachusetts, No. 16-240.  Justice Thomas issued a concurring opinion, in which Justice Gorsuch joined.  Justice Alito issued an opinion concurring in the judgment, in which Justice Gorsuch also joined.  And Justice Breyer issued a dissenting opinion, in which Justice Kagan joined. 

As the title of this post indicates, and as the pattern of votes suggests, the defendant prevailed in first of these listed cases, Maslenjak, which concerned the substantive reach of a federal criminal statute.  The government prevailed in the other two cases, one of which concerned the application of Brady (Turner) and the other of which concerned what types of errors can be found harmless in Strickland ineffective assistance analysis (Weaver).

For a variety of reasons, the procedural rulings on behalf of the government in Turner and Weaver seem like a much bigger deal than the Maslenjak ruling, perhaps especially because the government had won below in Turner and Weaver and so it could have been reasonably assumed that the Supreme Court took up the cases in order to reverse the outcome.  Also, of course, issues related to the application of Brady and Strickland impact so many cases, especially on collateral appeal.

Over at Crime & Consequences, Kent Scheidegger has this helpful summary post on all these cases simply and appropriately titled "Materiality."

June 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 21, 2017

"Evangelical leaders push for criminal justice reform"

Images (1)The title of this post is the headline of this new article in the National Catholic Reporter.  Here are excerpts:

Evangelical Christian leaders are spearheading a campaign for criminal justice reform, calling for equitable punishment, alternatives to incarceration and a different take on the "tough on crime" language of the Trump administration.

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Joined by black, white and Hispanic officials of evangelical organizations, he introduced the "Justice Declaration" that has been signed by close to 100 religious leaders from a wide range of Christian denominations. "The Church has both the unique ability and unparalleled capacity to confront the staggering crisis of crime and incarceration in America," the declaration reads, "and to respond with restorative solutions for communities, victims, and individuals responsible for crime."

The leaders later presented their declaration to Republican leaders, such as House Speaker Paul Ryan and Senate Judiciary Committee Chairman Chuck Grassley, in hopes of gaining bipartisan support for changes in federal law....

Ackerman said Prison Fellowship supports sentencing guidelines but thinks mandatory sentences are "a big mistake." He was joined at the news conference by leaders with testimonies of how churches helped formerly incarcerated people rehabilitate themselves and become productive citizens.

Dimas Salaberrios, president of the Concerts of Prayer Greater New York, told of how church members once vouched to a judge about his transformation after he escaped from authorities when he was a drug dealer. The judge pardoned him. "I'm living proof that when you grab somebody out of the pits of hell and you turn their life around that they can be great contributors to society," he said.

National Association of Evangelicals President Leith Anderson challenged churches to do more than sign the declaration but also take action steps to address racial inequities and work for alternatives such as drug courts and mental health courts to keep people out of prison. Thirteen percent of Americans are African-American but close to 40 percent of U.S. prisoners are black. "What if all of our churches were to adopt one incarcerated person?" he asked. "What if all of our churches would service one family where a family member is incarcerated? What if all of our churches would care for one victim?"

The declaration, and a related 11-page paper on how the church can respond to crime and incarceration, were spearheaded by evangelical organizations: Prison Fellowship, the NAE, the Southern Baptist Convention's Ethics and Religious Liberty Commission and the Colson Center for Christian Worldview.

But signatories on the declaration include a wider range of Christian leaders, such as Episcopal Church Presiding Bishop Michael Curry, Bread for the World President David Beckmann and Bishop Frank Dewane, who chairs the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development.

This Justice Declaration webpage hosted by Prison Fellowship provides more details on this latest notable advocacy effort, and that page also provides a link to this interesting 11-page white paper titled "Responding to Crime & Incarcertation: A Call to the Church."

June 21, 2017 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) re-sentenced to life with parole

As reported in this lengthy local article, a defendant whose surname means a lot to a lot of juvenile offenders long ago sentenced to life without parole was resentenced today in Louisiana. Here are just some of the details of the latest chapter of a truly a remarkable case:

A Baton Rouge judge Wednesday gave a 71-year-old man convicted of killing a sheriff's deputy when he was 17 a chance to leave prison before he dies.

Henry Montgomery has been locked up for 54 years in the killing of East Baton Rouge sheriff's deputy Charles Hurt. But Judge Richard Anderson on Wednesday re-sentenced Montgomery to a life sentence with the possibility of parole, following a pair of recent U.S. Supreme Court rulings — including Montgomery's own case — that say defendants convicted of murder for killings committed as juveniles cannot automatically be sent away to serve life without parole.

"This is not an easy thing for me to do … because one man is dead and the family is still living through the consequences. But the law is the law," said Anderson, referencing the higher court decisions that said sentences of life without parole for young killers must be "rare and uncommon" and reserved only for those who display "irretrievable depravity."

Anderson's decision during the brief hearing came nearly two months after defense attorneys presented the judge with extensive testimony about Montgomery's conduct in prison and the rough circumstances of his childhood.  Officials from the Louisiana State Penitentiary at Angola, where Montgomery has spent nearly all of the last half-century, described him as a trustworthy inmate and reliable worker who accumulated a remarkably low number of infractions during his time at the once-notorious prison.

Lindsay Jarrell Blouin, an East Baton Rouge Parish public defender who represents Montgomery, also detailed rough circumstances of Montgomery's childhood, which she wrote included neglect, physical abuse and a lack of education. Court filings also detailed Montgomery's mental limitations, including an IQ estimated by psychologists during his 1969 trial as somewhere in the 70s....

"He's been a model prisoner for 54 years, he's been a mentor and, by all appearances, he's been rehabilitated," Anderson said. "It does not appear (Montgomery) is someone the Supreme Court would consider 'irreparably corrupt.'"

Montgomery was walking near Scotlandville High School on Nov. 13, 1963, when he ran from Hurt and other deputies who'd arrived to investigate a theft complaint called in by the school.  Hurt tried to detain Montgomery, according to trial transcripts, and Montgomery killed him with a single shot from a .22-caliber pistol.  Hurt's partner that day wrote in an initial report that Hurt had his hands up and was backing away when Montgomery shot him.  But the officer testified at trial that he was some 350 yards away and couldn't see Hurt or Montgomery at the moment of the shooting, according to recent filings by Montgomery's attorneys.  The deputy was wearing plain clothes, Montgomery's attorneys wrote, and the teenager told investigators following his arrest that he thought Hurt was reaching for a gun when he fired. "This was a terrible, split-second decision made by a scared 17-year-old boy who thought he was going to be killed."

Hurt's family did not attend Wednesday's hearing.  But in April, as Anderson considered evidence in the case, Hurt's two daughters took the stand to testify to how that single gunshot upended their family, snapped previously happy childhoods and continues to reverberate in painful ways decades later.  Becky Wilson and Linda Woods both told Anderson through tears that they'd come to forgive and pray for Montgomery.  The deputy's daughters met privately with Montgomery at Angola earlier this year.

But the sisters, as well as Jean-Paul deGravelles, Hurt's grandson who's now a Lafourche Parish sheriff's deputy, all said they felt Montgomery received a just sentence when a jury in 1969 found him guilty of murder "without capital punishment" — a verdict that spared Montgomery the death penalty but sent him away for the remainder of his life.

Anderson echoed that view, noting from the bench that he felt Montgomery's life-without-parole sentence was fair. But the law has changed, Anderson said, regardless of whether the judge agrees with the Supreme Court rulings.

Prosecutors didn't argue for either life with or without parole for Montgomery but noted the gravity of the crime and its impact on the victim's family.  Lawyers with the Attorney General's Office who represented the state at the hearing declined to comment Wednesday.  East Baton Rouge District Attorney Hillar Moore III said Anderson's "difficult but well-reasoned decision" acknowledged the suffering caused by Montgomery but was bound by the U.S. Supreme Court's decision.

Wilson, who was 9 years old when her father was killed, said Wednesday she believes Anderson reached "the only decision he could" under current law in offering Montgomery a chance at parole and said she appreciates the judge's careful consideration of the case.  "As for Mr. Montgomery, I just pray for God’s perfect will to be done in his life and hope and pray he is blessed wherever he might be, today and in his future," Wilson said by email. "If he should be paroled, I hope, if given the opportunity, he will use his life experience to help keep young men and women from going down the same path he went down. Also, I pray that he will truly be thankful and humbled by the gift of freedom."

Montgomery's 1969 conviction came after the Louisiana Supreme Court overturned an earlier verdict, ruling that widespread and often racially tinged attention to the case "permeated the atmosphere" in Baton Rouge during his first trial.  The court ruled that "no one could reasonably say that the verdict and the sentence were lawfully obtained." Anderson on Wednesday noted the jury in Montgomery's second trial in 1969 chose not to impose a death sentence even though the law allowed it.  Montgomery's attorneys argued earlier that the jury's decision for a lesser sentence suggested they didn't see Montgomery as among the worst killers.

Anderson also admonished Montgomery, who stood before the judge stooped with his hands closely shackled to a belly chain, to take advantage of his opportunity at freedom.  Montgomery didn't speak during the hearing and was quickly led away after the judge read out his new sentence.  Blouin, his attorney, said after the hearing that Montgomery was pleased with the decision but "still grieves for the victim's family and the impact this has had on them."

The next step for Montgomery will be a request for a parole board hearing.  He's already served more than twice as many years as required before parole consideration and has met other requirements to apply for release. Keith Nordyke, an attorney with the Louisiana Parole Project, a nonprofit firm representing Montgomery in the parole process, said a hearing could come before the end of the year.

June 21, 2017 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

A misdirected attack on two notable sentences in Justice Alito's Packingham concurrence

There is a lot worth discussing concerning the Supreme Court's decision in Packingham earlier this week (basics here), and this new Washington Post "Fact Checker" piece decides to give particular attention to two lines from Justice Alito's concurrence in a piece headlined "Justice Alito’s misleading claim about sex offender rearrests."  I find the WaPo piece itself somewhat misleading (or really misdirected) because it is focused too much on the second of these two sentences in Justices Alito's opinion rather than the first:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”

After reviewing a bunch of statistics, this WaPo piece comes to this conclusion:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading.  It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release.  This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago.  Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide.   It does the public no service when the Supreme Court justices make a misleading characterization like this.  We award Three Pinocchios.

I find disconcerting that what this WaPo piece is calling " quite misleading" is a sentence (the second one above) that is factually accurate.  The piece strikes me as especially problematic because it fails to stress that what might make the second sentence about "sex offender rearrest trends" potentially misleading is that it follows the forceful assertion that "repeat sex offenders pose an especially grave risk to children."  In my reading, it is the phrase "especially grave risk to children" that contributes to the impression that "recidivism among sex offenders [is] a uniquely bad problem."

That all said, the ever bigger problem with the law at issue in Packingham and lots of other similar laws and the WaPo commentary itself is use of the always-way-too-broad offender category of "sex offender."  This board label necessarily lumps together some relatively minor adult offenders and some relatively very serious offenders who consistently victimize children.  There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Ultimately, these are challenging issues to discuss with precision both conceptually and statistically.  And though I am always pleased to see detailed discussion of crime data in the Washington Post, I am troubled by its decision to "award Three Pinocchios" to a statement that is factually true. 

UPDATE: I just noticed that Ed Whelan over at Bench Memos has this more thorough review of this WaPo piece under the titled "Fact-checking the fact Checker."

June 21, 2017 in Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25)

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Notable look at notably tough sentencing patterns in one rural county in Minnesota

Sentencing, like politics, is ultimately always a local story, and this lengthy new MinnPost article takes a deep dive into the notable local sentencing stories of Polk County, Minnesota.  The lengthy article is headlined "Why tiny Polk County sends so many people to prison," and here are excerpts:

If you’re planning to commit a crime in Minnesota, you might want to steer clear of Polk County. This county of 32,000, which hugs the Red River on the North Dakota border, is sparsely populated and largely agricultural, save for East Grand Forks, Crookston and a handful of other small cities set between soybean, wheat and sugar beet fields.

Yet in 2014 it sent more people to prison, per capita, than any other county in Minnesota, a county-by-county analysis of National Corrections Reporting Program data by the New York Times and Fordham University found. That year, the most recent for which data are available, prison admission rates in northwestern Minnesota’s Polk County stick out across the upper Midwest, more closely resembling some of the counties that form a prison belt across the U.S., from Indiana to Kentucky, Missouri Arkansas, Oklahoma, Louisiana and Texas, than it does most of its neighbors.

For every 10,000 Polk County residents, 50 people were admitted to prison in 2014, an increase from 22 per 10,000 residents in 2006 and 39 per 10,000 residents in 2013, among the highest in Minnesota both years. The high prison admissions rate in Polk stands in sharp contrast to lower rates in nearby counties and the Twin Cities: In 2014, 12 per 10,000 residents in Hennepin County went to prison and 19 per 10,000 residents in Ramsey did. Neither rate increased by more than 3 per 10,000 people from 2006.

Why is Polk County sending so many people to prison? Ask Polk County officials what’s behind the high rate of imprisonment, and they’ll likely have an answer for you: drugs.

To some extent, the data bear that out. While for the most part crime and arrest rates were stable between 2006 and 2014 in Polk County, drug crimes are a big exception. Drug crimes went from a rate of 38.6 per 10,000 residents in 2006 to 61.9 per 10,000 residents in 2014. Drug-related arrest rates, likewise, more than doubled, from 25 per 10,000 residents in 2006 to 55 per 10,000 people in 2014....

In Minnesota, how felony offenders are punished depends on where they fall on the Sentencing Guideline Commission’s grid.... In theory, the sentencing guidelines bring uniformity to criminal sentencing in Minnesota’s 87 counties and 10 judicial districts. But there’s some room for discretion on the part of prosecutors and judges built into the system, too. While sentencing guidelines are followed in the vast majority of cases, courts are allowed to impose a softer or harsher sentences “when substantial and compelling aggravating or mitigating factors are present.” In some counties, departures are used more frequently than others.

In Polk County, 14 percent of felony drug offenders between 2006 and 2015 received “aggravated dispositional departures” — usually prison instead of the probation called for in the sentencing guidelines. In Beltrami County and Clay counties, 6 percent and 8 percent did, respectively. Statewide, less than 9 percent of felony drug offenders for whom the sentencing guidelines prescribe probation receive prison....

Kip Fontaine, assistant public defender ... noticed what seems to be a disproportionate number of third-degree charges for drug possession in a school zone or park. A person, say, found to be driving through one of these areas with drugs on them would, in most counties, be charged with this crime in the fifth-degree, a lesser charge, Fontaine said. Not necessarily in Polk. According to the Minnesota Sentencing Guidelines Commission, of 83 people with criminal history scores of zero through three sentenced with third-degree possession in a school zone or park in Minnesota between 2011 and 2015, 36 — nearly half — were in Polk County....

Andrew Larson, the executive director of Tri-County Community Corrections, the government agency that provides probation and detention services in Polk, Red Lake and Norman counties, said he senses a difference in philosophy in Polk County, too. “The Polk County Attorney’s Office is just more aggressive in their prosecution than perhaps what the other counties are, and it’s literally that simple. It’s not a matter of one being right or the other being wrong, it’s just a difference,” he said.

UPDATE: In the comments, federalist astutely suggests noting a similar article about case-processing toughness in a rural mid-west county.  So: New York Times highlights modern rural incarceration realities 

June 21, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Seventh Circuit panel again finds below-guideline sentence for abusive police officer unreasonable

Especially because it can sometimes seem that post-Booker reasonableness review of sentences has little bite, it still seems blogworthy whenever a circuit court finds a federal sentence unreasonable.  The work of a Seventh Circuit panel yesterday in US v. Smith, No. 16-2035 (7th Cir. June 19, 2017) (available  here), struck me as doubly blogworthy because it represents the second time the same sentence has been reversed and because the defendant here is an abusive local police officer.  Here is how the opinion gets started:

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse.  The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016).  On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Here are the essential basics from the opinion of the defendant's crime and recommended guideline punishment:

Smith was a police officer employed by the Putnam County Sheriff’s Department.  In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith’s fellow police officers testified against him, describing the unwarranted [and brutal] attacks....

Smith’s guidelines range was thirty-three to forty-one months’ imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife.

The lengthy Smith opinion follows with lots of notable and interesting discussion about how the sentencing court justified a sentence of 14 months and why the circuit panel believe this below-guideline sentence was unreasonable even at a second sentencing with additional evidence.  And, as sometimes happens in the post-Booker world, the circuit panel officially ruled the sentence procedurally unreasonable, but it seems pretty clear that the panel was troubled by what it perceived to be a substantively light sentence under these circumstances.

June 20, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Intricate disputation of AG Sessions' recent defense of his new tougher federal charging/sentencing policy

As noted in this weekend post, the US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors via this opinion piece.  Today, the Washington Post has this new opinion piece by Radley Balko under the the headline "Here are all the ways Jeff Sessions is wrong about drug sentencing."  

The headline of the Balko piece serves as something of a summary of its contents, which involves an intricate "a line-by-line review" of all the key points made by AG Sessions in his piece.  Rather than try to capture all the particulars of the Balko piece here, I will just quote some of his closing commentary: 

Certainly, drug trafficking lowers the quality of life in a community.  Turf wars between drug gangs can make those communities more dangerous.  But again, Sessions himself concedes that prohibition itself creates these problems.  It’s pretty rare that liquor store employees erupt in gun fights over turf.  And if prohibition begets violence, the only way the solution to an increase in violence can be more prohibition is if the new prohibition wipes out drug trafficking entirely.  Otherwise, more prohibition usually just means more violence.  Knock out one major dealer, and new dealers will emerge and go to war to take his place.

We all know that rescinding the Holder memo isn’t going to end drug trafficking.  It isn’t going to affect the opioid crisis.  It isn’t going to move the needle either way on the violence in Chicago or Baltimore.  The most likely outcome is that a few hundred more nonviolent offenders spend a lot more time in federal prison than they otherwise would have.  I suppose it will also give Sessions the satisfaction of having rolled back one of the few substantive criminal-justice reforms of the Obama administration.  But the crime rate and the violence in America’s cities will rise or fall independent of the Holder memo.

The one thing we can all depend on — the one sure thing: Illicit drugs will continue to be available to pretty much anyone who wants to use them.

Prior recent related post:

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

June 20, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline

Long-time readers may recall a period about five year back when I was regularly blogging about notable federal district and circuit opinions struggling in various ways to figure out whether and how federal courts could impose restitution awards/punishments on federal offenders convicted only of downloading illegal images.  (As blogged here, a New York Times Magazine cover story in January 2013 nicely covered the legal and social issues involved in what was ultimately a sentencing question.)   Because the issue produced various splits in the lower courts, the Supreme Court took up and resolved the question in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  

But while Paroline resolved some measure of legal uncertainty surrounding this child-porn restitution issue, it did so in a way that largely punted a host of factual challenges back to district courts at the time of sentencing.  This new local article in my local paper, headlined "Judge doesn’t want to guess on child-porn restitution," reminds me that Paroline did not really end the messy questions surrounding child-porn restitution determinations, it just made the litigation here much lower profile.  Here are excerpts from the local article:

U.S. District Judge Michael H. Watson doesn’t like “wild-ass guesses,” according to federal courts Reporter Earl Rinehart.

Watson presided over a restitution hearing last week during which a civil attorney representing a child pornography victim called “Andy” had petitioned Watson for $58,415 in damages.  The attorney’s client wasn’t the underage teen the defendant had photographed nude and was convicted for, but Andy’s picture was on the defendant’s computer.

In 2014, the U.S. Supreme Court ruled that child-pornography defendants could be liable to pay victims an amount proximate to the harm caused by having and/or distributing the image. Watson has said Congress needs to set standards to help judges calculate how much restitution to approve.  A bill that would set those minimum amounts was passed by the U.S. Senate but has languished in the House Judiciary Committee since February 2015.

Although he commended Assistant U.S. Attorney Heather Hill for her “valiant effort” in arguing for restitution, he agreed with Assistant Federal Public Defender Rasheeda Khan, who argued there was no evidence the defendant had shared Andy’s image and there was no way to accurately figure how much he owed now and for the victim’s future therapy costs. Another 158 defendants have either agreed to pay restitution to Andy or were ordered to do so.

Watson said the petition was based on a 2014 report that’s “not subject to cross examination” and “would not be admissible in a civil litigation.”

“There is no evidence Andy is a victim of this offense,” the judge said. He called again on Congress “to give us some direction.”

“It’s essentially a wild-ass guess for me to figure the appropriate restitution,” Watson said before denying any to Andy.

A few (of many) prior posts on Paroline and child porn restitution issues from years ago:

June 20, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Pew analysis finds no relationship between drug imprisonment and drug problems

The Public Safety Performance Project of The Pew Charitable Trusts has this notable new posting concerning a notable new letter and analysis it completed. The posting is headlined "Pew Analysis Finds No Relationship Between Drug Imprisonment and Drug Problems: Letter provides new 50-state data to the federal opioid commission," and here is what it has to say:

On June 19, 2017, The Pew Charitable Trusts submitted a letter to the President’s Commission on Combating Drug Addiction and the Opioid Crisis, outlining an analysis of whether state drug imprisonment rates are linked to the nature and extent of state drug problems—a key question as the nation faces an escalating opioid epidemic. Pew compared publicly available data from law enforcement, corrections, and health agencies from all 50 states.

Pew’s analysis found no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests. The findings reinforce previous research that cast doubt on the theory that stiffer prison terms deter drug use and related crime.

Although the federal courts receive the lion’s share of public attention, most of the nation’s criminal justice system is administered by states. State laws determine criminal penalties for most drug offenses, and the states have made different policy choices regarding those punishments, resulting in widely varied imprisonment rates.

For example, Louisiana had the country’s highest drug-offender imprisonment rate in 2014, with 226.4 drug offenders in prison per 100,000 residents. In contrast, Massachusetts’s rate was the lowest, 30.2 per 100,000 residents, less than one-seventh Louisiana’s rate.

As Pew’s letter explained, higher rates of drug imprisonment do not translate into lower rates of drug use, fewer drug arrests, or fewer overdose deaths. And the findings hold even when controlling for standard demographic variables, such as education level, employment, race, and median household income.

The full 13-page Pew letter is available at this link.

June 20, 2017 in Drug Offense Sentencing, Prisons and prisoners | Permalink | Comments (0)

AG Sessions announces notable new DOJ crime-fighting plans to be rolled out in a dozen cities

NPSP200Today marks the start of the Justice Department's National Summit on Crime Reduction and Public Safety, and this summit is already producing some interesting news.  This Washington Examiner article, headlined "Jeff Sessions announces plan to help 12 cities find ways to fight crime," provides these basics:

Attorney General Jeff Sessions on Tuesday announced a new initiative to combat violence and bolster public safety by promising federal resources to help 12 cities strategize on the best ways to fight crime.  The new federal effort came ahead of Sessions' speech at the opening of the National Summit on Crime Reduction and Public Safety outside of Washington.

"Turning back the recent troubling increase of violent crime in our country is a top priority of the Department of Justice and the Trump Administration, as we work to fulfill the president's promise to make America safe again," Sessions said in a statement.

The initiative will start with 12 cities joining the Justice Department's newly formed National Public Safety Partnership, dubbed "PSP."  The new PSP program comes on the heels of President Trump's February executive order on public safety.  According to the Justice Department, the initial 12 cities are that ones need "significant assistance" in combating "gun crime, drug trafficking and gang violence."

The Department of Justice will work with American cities suffering from serious violent crime problems.  Our new National Public Safety Partnership program will help these communities build up their own capacity to fight crime, by making use of data-driven, evidence-based strategies tailored to specific local concerns, and by drawing upon the expertise and resources of our department," Sessions said.

The 12 cities are:

  • Birmingham, Ala.
  • Indianapolis, Ind.
  • Memphis, Tenn.
  • Toledo, Ohio
  • Baton Rouge, La.
  • Buffalo, N.Y.
  • Cincinnati, Ohio
  • Houston, Texas
  • Jackson, Tenn.
  • Kansas City, Mo.
  • Lansing, Mich.
  • Springfield, Ill.

More cities are expected to be announced in the coming months, the Justice Department said.

Notably missing from the list are Chicago and Baltimore, two cities that have been rocked by gun violence and homicides this year.

AG Sessions also gave this lengthy speech to open the National Summit on Crime Reduction and Public Safety, and that speech included both a short discussion of his recent charging/sentencing memo and this new initiative:

[L]ast month I issued a memo to all federal prosecutors establishing a new charging policy. This policy makes clear that Department prosecutors generally will charge the most serious, readily provable offenses supported by the facts of the case. Instead of barring prosecutors from faithfully enforcing the law, this charging policy empowers these trusted professionals to apply the law fairly — and allows them to use discretion where a strict application of the law would result in an injustice.

That is how good law enforcement has always worked. This policy ensures that we uphold our constitutional duty to faithfully execute the laws, our ethical duty of candor to the courts, and our obligation to the American people to ensure that justice is done.

And today, the Justice Department is taking another important step, by launching a new program called the National Public Safety Partnership, or PSP.  This program will help communities suffering from serious violent crime problems to build up their capacity to fight crime.  The PSP program will use data-driven, evidence-based strategies, and draw upon the expertise of people in the Department of Justice, as well as others.

Our Department’s components will also support the PSP, working in collaboration with our local partners.  This program will enhance our support of state, local, and tribal law enforcement, so we can more effectively investigate and prosecute violent criminals — especially those involved in gun crimes, drug trafficking, and gang violence.

Based on local needs, the PSP program will provide two complementary but separate tiers of help — Diagnostics Teams and Operations Teams.  Diagnostic Teams will assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors, over a period of up to 18 months.  Operations Teams will provide rigorous training and coaching over a three-year period.  They will help communities form a lasting coordination structure among federal, state, local, and tribal law enforcement agencies and prosecutors.  Among other things, Operations Teams will provide enhanced crime trend analysis and comprehensive gun-crime intelligence programs.

We have selected 12 initial cities to take part in the Public Safety Partnership program, along with the 10 cities who took part in a pilot concept known as the Violence Reduction Network.  We anticipate announcing more PSP sites later this year.

And the new National Public Safety Partnership has this slick new website.

June 20, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Monday, June 19, 2017

History examining at length "America’s War on Drugs"

The-history-channel-History is in the midst of running a four-part documentary titled simply "America’s War on Drugs."  Here is how the channel describes the lengthy doc:

“America’s War on Drugs” is an immersive trip through the last five decades, uncovering how the CIA, obsessed with keeping America safe in the fight against communism, allied itself with the mafia and foreign drug traffickers.  In exchange for support against foreign enemies, the groups were allowed to grow their drug trade in the United States. The series explores the unintended consequences of when gangsters, war lords, spies, outlaw entrepreneurs, street gangs and politicians vie for power and control of the global black market for narcotics -- all told through the firsthand accounts of former CIA and DEA officers, major drug traffickers, gang members, noted experts and insiders.

Night one of “America’s War on Drugs” divulges covert Cold War operations that empowered a generation of drug traffickers and reveals the peculiar details of secret CIA LSD experiments which helped fuel the counter-culture movement, leading to President Nixon’s crackdown and declaration of a war on drugs.  The documentary series then delves into the rise of the cocaine cowboys, a secret island “cocaine base,” the CIA’s connection to the crack epidemic, the history of the cartels and their murderous tactics, the era of “Just Say No,” the negative effect of NAFTA, and the unlikely career of an almost famous Midwest meth queen.

The final chapter of the series examines how the attacks on September 11th intertwined the War on Drugs and the War on Terror, transforming Afghanistan into a narco-state teeming with corruption.  It also explores how American intervention in Mexico helped give rise to El Chapo and the Super Cartels, bringing unprecedented levels of violence and sending even more drugs across America’s borders.  Five decades into the War on Drugs, a move to legalize marijuana gains momentum, mega-corporations have become richer and more powerful than any nation’s drug cartel, and continuing to rise is the demand for heroin and other illegal drugs.

June 19, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.  Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

June 19, 2017 in Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (16)

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Sunday, June 18, 2017

"Days of Future Past: A Plea for More Useful and More Local Legal Scholarship"

The title of this post is the title of this notable new paper now available on SSRN and authored Frank Bowman.  Though not directly about sentencing, Frank's history as a fantastic sentencing scholar and reform advocate surely helped shape his perspective on the issues he discusses (and also surely helped me and this blog get a shout-out in footnote 81).  Here is article's abstract:

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship - a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.

June 18, 2017 in Recommended reading | Permalink | Comments (1)

Could jail be "the answer" for drug addicts?

The question in the title of this post is prompted by this New York Times opinion piece headlined "Addicts Need Help. Jails Could Have the Answer." This piece is authored by Sam Quinones, the journalist and author of the widely praised "Dreamland: The True Tale of America’s Opiate Epidemic." Here is how the lengthy piece gets started and its final line:

Not long ago, I visited a Narcotics Anonymous meeting where men with tattoos and short-cropped hair sat in a circle and talked out their errors. One had lived under an overpass, pimping his girlfriend’s daughter for cash to buy heroin. As the thought brought him to tears, his neighbor patted his shoulder. Others owned to stealing from grandparents, to losing jobs and children. Soon, most in the room — men with years of street addiction behind them — were wiping their eyes.

What made the meeting remarkable, however, was not the stories, but where it was taking place. Unit 104 is a 70-man pod in Kenton County Detention Center in northern Kentucky, across the Ohio River from Cincinnati. The unit, and an equivalent one for women, is part of a new approach to jail made necessary by our nationwide epidemic of opiate addiction. Drug overdoses are now the leading cause of death among Americans under 50.

As the country has awakened to that epidemic, a new mantra has emerged: “We can’t arrest our way out of this,” accompanied by calls for more drug-addiction treatment. Yet the opiate epidemic has swamped our treatment-center infrastructure. Only one in 10 addicts get the treatment they need, according to a 2016 surgeon general’s report. New centers are costly to build, politically difficult to find real estate for and beyond the means of most uninsured street addicts, anyway.

So where can we quickly find cheap new capacity for drug treatment accessible to the street addict? Jail is one place few have thought to look.

Jails typically house inmates awaiting trial or serving up to a year for a misdemeanor crime. Many inmates are drug addicts. They vegetate for months, trading crime stories in an atmosphere of boredom and brutality. Any attempt at treatment is usually limited to a weekly visit by a pastor or an Alcoholics Anonymous volunteer. When inmates are released, they’re in the clothes they came in with, regardless of the weather, and have no assistance to re-enter the real world. This kind of jail has always been accepted as an unavoidable fixed cost of government.

But the sheer dimensions of the opiate-addiction epidemic are forcing new ideas. One of them, now being tried in Kentucky, is jail not as a cost but as an investment in recovery. Jails as full-time rehab centers — from lights on to lights out. Jailing addicts is anathema to treatment advocates. However, as as any parent of an addict can tell you, opiates are mind-controlling beasts. A kid who complained about the least little household chore while sober will, as an addict, walk through five miles of snow, endure any hardship or humiliation, to get his dope.

Waiting for an addict to reach rock bottom and make a rational choice to seek treatment sounds nice in theory. But it ignores the nature of the drugs in question, while also assuming a private treatment bed is miraculously available at the moment the addict, who is usually without insurance, is willing and financially able to occupy it. The reality is that, unlike with other drugs, with opiates rock bottom is often death. (Drug overdose deaths last year most likely exceeded 59,000, the most ever in the United States, The Times found in an analysis of preliminary data this month, up about 19 percent over 2015.)

Jail can be a necessary, maybe the only, lever with which to encourage or force an addict who has been locked up to seek treatment before it’s too late. “People don’t go to treatment because they see the light,” said Kevin Pangburn, director of Substance Abuse Services for the Kentucky Department of Corrections. “They go to treatment because they feel the heat.”

Jail may in fact be the best place to initiate addict recovery. It’s in jail where addicts first come face-to-face with the criminal-justice system, long before they commit crimes that warrant a prison sentence. Once in custody and detoxed of the dope that has controlled their decisions, it’s in jail where addicts more clearly behold the wreckage of their lives. And it is at that moment of clarity and contrition when they are typically plunged into a jailhouse of extortion, violence and tedium....

Amid this national epidemic of opiate addiction, rethinking jail, as Kentucky has, as a place of sanctuary and recovery for a population that has lost hope, might not just be advisable; it may be indispensable.

June 18, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Saturday, June 17, 2017

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

The US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors.  This opinion piece carries this headline: "Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again."  And here are excerpts (with on particular line emphasized by me):

[I]n 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs.  The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent.  Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.

Before that policy change, the violent crime rate in the United States had fallen steadily for two decades, reaching half of what it was in 1991.  Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed. In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

And while defenders of the 2013 policy change point out that crime rates remain low compared with where they were 30 years ago, they neglect to recognize a disturbing trend that could reverse decades of progress: Violent crime is rising across the country. According to data from the FBI, there were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent across the country. That was the largest increase since 1971. The increase in murders continued in 2016. Preliminary data from the first half of 2016 shows that large cities in the United States suffered an average increase in murders of nearly 22 percent compared with the same period from a year earlier.

As U.S. attorney general, I have a duty to protect all Americans and fulfill the president’s promise to make America safe again. Last month, after weeks of study and discussion with a host of criminal-justice participants, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that once again authorizes prosecutors to charge offenses as Congress intended. This two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case in most cases, and allows them to exercise discretion where a strict application of the law would result in an injustice. Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate. That is the way good law enforcement has always worked.

Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession, and in most of those cases the defendants were drug dealers who accepted plea bargains in return for reduced sentences. Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members. To be subject to a five-year mandatory sentence, a criminal would have to be arrested with 100 grams or more of heroin with the intent to distribute it — that is 1,000 doses of heroin.

The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015. My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend — one that puts at risk the hard-won gains that have made our country a safer place.

Some skeptics prefer to sit on the sidelines and criticize federal efforts to combat crime. But it’s not our privileged communities that suffer the most from crime and violence. Minority communities are disproportionately impacted by violent drug trafficking. Poor neighborhoods are too often ignored in these conversations. Regardless of wealth or race, every American has the right to demand a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American communities are ravaged by crime and violence.

There are those who are concerned about the fate of drug traffickers, but the law demands I protect the lives of victims that are ruined by drug trafficking and violent crime infecting their communities. Our new, time-tested policy empowers police and prosecutors to save lives.

There are lots of reasons and lots of ways to question any efforts to directly link the recent uptick in violent crime over the last few years to changes in federal prosecutorial policies.  But I have emphasized one particular line in the opinion piece in order to help enhance understanding of the thinking behind the new Sessions Memo. The Attorney General reasonably thinks he must  "do something" in response to recent increases in violent crime, and the most obvious and easy thing for him to do is to rescind Holder-era policy guidance and return to the federal prosecutorial policies of earlier era. (Of course, the prosecutorial policies of earlier era helped swell the federal prison population dramatically and, as noted here, the Department of Justice is already predicting that federal prison populations will start growing again after notable recent declines.)  

Prior recent related posts: 

June 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, June 16, 2017

You be the juvenile sentencing judge: what sentence for teen guilty of involuntary manslaughter for encouraging suicide?

A high-profile state (bench) trial culminated this morning in a notable involuntary manslaughter conviction in the so-called in texting suicide case.  This Boston Globe article provides the basic details to set up the question in the title of this post:

Michelle Carter, who repeatedly urged her boyfriend to kill himself, was found guilty of involuntary manslaughter Friday by a juvenile court judge, ending an extraordinary trial that explored a virtual relationship between teenagers that ended in a suicide.

Judge Lawrence Moniz delivered his verdict after deliberating for two days in the jury-waived trial in Bristol Juvenile Court where Carter [who was 17 at the time of the offense] was being tried as a youthful offender.  The trial riveted lawyers and the public alike as it delved into the painful interior lives of two teenagers who called themselves boyfriend and girlfriend though they had met in person only a few times....

Bristol prosecutors alleged Carter should still be held accountable for the death of Conrad Roy III even though she was not present when the 18-year-old with prior suicide attempts filled his truck with carbon monoxide on July 12, 2014.  Carter and Roy spoke for 47 minutes as he parked in the parking lot of a Kmart in Fairhaven.  When he told he was too scared and had left the truck, she ordered him to return, according to testimony at her trial. “Get back in,” she allegedly said.

Roy left a suicide note addressed to Carter that was made public during her trial.

Speaking from the bench, Moniz said that he concluded Carter was guilty of involuntary manslaughter, in part, for ordering Roy back into the truck in what she knew was a toxic environment where it would take him 15 minutes to die — and failed to notify anyone as required under Massachusetts law.  “Miss Carter had reason to know that Mr. Roy had followed her instruction and placed himself in the toxic environment of that truck,” Moniz said.  “Knowing that Mr. Roy is in the truck, knowing the condition of the truck. Knowing, or at least having the state of mind that 15 minutes must pass, Miss Carter took no actions … She called no one.  She did not issue a simple additional instruction: Get out of the truck.”

Moniz also said the case was not legally novel since 200 years ago, a state prison inmate was prosecuted for convincing a man facing the death sentence to hang himself in his cell six hours before he was to be executed.  Moniz also noted that Roy had a long and troubled psychiatric history that included multiple suicide attempts — but each time he stopped and sought out help from his family and friends.

Moniz set sentencing for Aug. 3.  She faces up to 20 years in prison if given the maximum sentence for involuntary manslaughter.

I would be shocking if the judge here decided to impose a sentence anywhere near the applicable 20-year max. I am inclined to guess a prison sentence in the range of a year or two will be what the juvenile judge here will be considering. But I have not followed this case and the evidence closely, so I am really judge guessing here based on the nature of the crime and the offender. And I am interested to hear if others have more informed (or uninformed) views on what a fair and effective sentences in this case would look like.

June 16, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (19)

Historic criminal justice reform signed into law in Louisiana, which has historically been highest incarcerating state

As reported in this local article, "bills signed into law Thursday morning by Gov. John Bel Edwards aim to change Louisiana's reputation as the most imprisoned state in the country." Here are some the sentencing details from the press article (though the folks should be sure to check out this summary of the full package of bills which covers an array of other issues including victim services and reentry concerns):

"With this ambitious package, Louisiana is projected to reduce the prison population by 10 percent and save $262 million over the next decade," according to the bills' package summary [available here]. "Seventy percent of these savings — an estimated $184 million — will be reinvested into programs and policies proven to reduce recidivism and support victims of crime."

The legislation signed into law includes:

Senate Bill 139 [which provides] alternatives to incarceration like drug rehabilitation. Expands probation eligibility to third-time nonviolent offenders, as well as first-time, lower-level violent offenders. It also gives opportunities for release. Consolidates eligibility for parole consideration for prisoners convicted of nonviolent, non-sex offenses at 25 percent of sentence served....

Senate Bill 220 [which alters sentencing rules to make sure law] focuses prison space on serious and violent offenders. It does this by removing less serious crimes to the violent crimes list and merging redundant theft and burglary offenses.

Senate Bill 221 [which addresses] repeat offenders by lowering the mandatory minimum sentence for second and third offenses.

Senate Bill 16 [which provides that] most people sentenced to life as juveniles receive an opportunity for parole consideration after serving a minimum of 25 years in prison.

June 16, 2017 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, June 15, 2017

Collateral Consequences Resource Center creates Compilation of Federal Collateral Consequences

Cfcc-logo-1As detailed via this new post at the Collateral Consequences Resource Center, titled "Introducing the Compilation of Federal Collateral Consequences," the folks at CCRC have launched another terrific new resource. Here is more background about this important work via the CCRC posting:

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.

This newly developed tool allows individuals to identify federal collateral consequences based on the people, activities or rights affected; to access complete and current statutory and regulatory text detailing the operation of each consequence; and, to explore the relationship between consequences and their implementing regulations, and among different consequences.  This is a product that has been many months in the making, and we hope it will serve as an important resource for practitioners, researchers, and policymakers, as well as individuals with criminal records. 

The CFCC data is derived from the National Inventory of the Collateral Consequences of Conviction (NICCC), a database originally compiled by the American Bar Association under a grant from the National Institute of Justice pursuant to the Court Security Act of 2007.  The NICCC itself is currently hosted by the Council of State Governments on the website of the National Reentry Resource Center.

In developing the CFCC we streamlined and restructured the NICCC data, reorganizing it into keyword categories for easier user access, and combining overlapping and duplicative entries. We omitted potentially misleading interpretations and lengthy textual excerpts in favor of links to the full current version of the law or rule.  At the same time, we updated the NICCC data to reflect laws enacted and rules adopted in the past two years.

The most important new feature of the CFCC is the addition of a comprehensive set of searchable “Keywords” that allow users to zero in on consequences of interest with a high degree of precision and accuracy.

The result is a tool for practitioners and researchers that we believe will be more useful, easier to operate and understand, and more current and reliable.

The CFCC represents just the beginning of what we envision as a much larger project.  We are currently developing state-specific compilations using the same platform and will be rolling those out as they are completed.  Our Wisconsin compilation is already available through the Wisconsin State Public Defender’s website.  A similar database developed for the Vermont Attorney General is scheduled to launch this summer. 

June 15, 2017 in Collateral consequences | Permalink | Comments (2)

"Support Grows for Civil Commitment of Opioid Users"

The title of this post is the headline of this notable new Stateline article.  Here is how it gets started:

Amid an opioid addiction epidemic that is killing more than 90 Americans every day, there is a growing movement to make it easier for relatives and health care providers to quickly secure court orders to forcibly confine and treat people who are addicted to drugs.  Most states have civil commitment laws primarily designed to protect people with mental illness from themselves and others.  Many of the laws include drug addiction and alcoholism as a justification for temporary confinement, or at least don’t preclude it.

But in practice, most commitment laws have been ineffective when it comes to people who use heroin and other opioids, in part because some judges have been leery of taking away a person’s civil liberties for what society has long perceived as a moral failing.  Unlike people with severe mental illness, people who are addicted to drugs typically retain the mental capacity to take care of their basic needs, even though the chronic disease alters the brain, making the person eventually value drug use above all else.

New Hampshire, Pennsylvania and Washington are considering new civil commitment laws specifically designed for opioid use.  Kentucky has gone back to the drawing board after failing to enact a commitment law for opioid addiction last year.

And in Massachusetts, the one state where civil commitment has been used extensively for opioid addiction, Republican Gov. Charlie Baker wants to make it even more common....

Historically, confining people against their will has been fraught with moral and legal ambiguities and haunted by reports of abuse.  But the parents of young adults who use opioids are pushing state lawmakers and governors to make intervention easier, even as physicians and state health officials search for ways to break the cycle of repeated overdoses.

Addiction professionals generally agree that civil commitment can save lives. But they argue that without effective treatment, confining people with an addiction may do more harm than good.  “People who use substances and have addictions still have civil rights,” said Dr. Alex Walley, director of an addiction medicine fellowship at Boston Medical Center.  “The real question is whether effective treatment is available, which in the case of opioids, is going to be medication. And it’s not OK to limit it to just one medicine,” Walley said.  Another concern is whether the state can ensure that continued treatment will be available once the person is released, he said.

June 15, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

DC Circuit strikes down FCC rules placing caps on payphone rates in prisons

Earlier this week, as reported in the AP article, a DC Circuit panel "struck down regulations intended to cap the price of some calls to prison inmates."  The full ruling in Global Tel*Link v. FCC, No. 15-1461 (DC Cir. June 13, 2017) (available here), has a lengthy introduction that includes these excerpts:

Due to a variety of market failures in the prison and jail payphone industry, ... inmates in correctional facilities, or those to whom they placed calls, incurred prohibitive per-minute charges and ancillary fees for payphone calls. In the face of this problem, the Commission decided to change its approach to the regulation of ICS providers. In 2015, in the Order under review, the Commission set permanent rate caps and ancillary fee caps for interstate ICS calls and, for the first time, imposed those caps on intrastate ICS calls. The Commission also proposed to expand the reach of its ICS regulations by banning or limiting fees for billing and collection services — so-called “ancillary fees” — and by regulating video services and other advanced services in addition to traditional calling services.

Five inmate payphone providers, joined by state and local authorities, now challenge the Order’s design to expand the FCC’s regulatory authority.  In particular, the Petitioners challenge the Order’s proposed caps on intrastate rates, the exclusion of “site commissions” as costs in the agency’s ratemaking methodology, the use of industry-averaged cost data in the FCC’s calculation of rate caps, the imposition of ancillary fee caps, and reporting requirements. And one ICS provider separately challenges the Commission’s failure to preempt inconsistent state rates and raises a due process challenge....

  • We hold that the Order’s proposed caps on intrastate rates exceed the FCC’s statutory authority under the 1996 Act. We therefore vacate this provision.

  • We further hold that the use of industry-averaged cost data as proposed in the Order is arbitrary and capricious because it lacks justification in the record and is not supported by reasoned decisionmaking. We therefore vacate this provision.

  • We additionally hold that the Order’s imposition of video visitation reporting requirements is beyond the statutory authority of the Commission. We therefore vacate this provision.

  • We find that the Order’s proposed wholesale exclusion of site commission payments from the FCC’s cost calculus is devoid of reasoned decisionmaking and thus arbitrary and capricious.  This provision cannot stand as presently proposed in the Order under review; we therefore vacate this provision and remand for further proceedings on the matter.

  • We deny the petitions for review of the Order’s site commission reporting requirements.

  • We remand the challenge to the Order’s imposition of ancillary fee caps to allow the Commission to determine whether it can segregate proposed caps on interstate calls (which are permissible) and the proposed caps on intrastate calls (which are impermissible).

  • Finally, we dismiss the preemption and due process claims as moot.

June 15, 2017 in Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Wednesday, June 14, 2017

A Call for Papers: "Is It Time for Truth & Reconciliation in Post-Ferguson America?"

I am always happy, indeed eager, for this blog to be a forum for making calls for papers and/or for promoting events of interest to criminal justice academics and advocates.  To that end, I am happy to be able to post this item as requested recently via email:

Call for Papers: "Is It Time for Truth & Reconciliation in Post-Ferguson America?"

Sponsored by Michigan State University College of Law

Ever since Europeans first settled the continent over four hundred years ago, racial injustice has existed in North America. Human bondage was formally recognized in the United States for nearly a century following the Nation's birth in 1776.  While the Thirteenth Amendment officially abolished slavery in 1865 and the Fourteenth Amendment mandated equal protection in 1868, nearly another century passed before "separate but equal" was repudiated and some progress was made.  Today we still see persistent racial inequities throughout American society.   The criminal justice/prison complex disproportionately targets, captures and incarcerates persons of color; and police shootings of unarmed black victims — such as of Michael Brown in Ferguson, Missouri in Aug. 2014 — are grimly commonplace. It is difficult to deny, in light of this history, that America has a major problem of race.

What can be done?  Truth and Reconciliation is a process that has been used effectively in other nations and cultures (e.g., South Africa; native nations) following times of deep racial discord/violence.  The idea is that true healing can begin only when past atrocities and injustices are first acknowledged and addressed.

The Symposium Committee, in conjunction with the University's administration, seeks to convene leading activists, scholars, policymakers, and thought-makers for 1-2 days of discussions and conversations on the topic of the Nation's responsibility to account for the history of racial injustice in America.  Selected submissions will be presented at the Law Review Symposium in March 2018, and published in a special symposium issue of Michigan State Law Review.

To be considered, please send an abstract (300 – 500 words) outlining your proposed paper to Professor Catherine Grosso at grosso @ law.msu.edu and Marie Gordon at mgordon @ law.msu.edu by August 15, 2017.  Don’t hesitate to contact us if more information would be helpful.

Faculty Co-Sponsors: Tiffani Darden; Matthew Fletcher (Director of Indigenous Law & Policy Center); Kate Fort (Director of Indian Law Clinic); Brian Gilmore (Director of the Housing Clinic); Catherine Grosso; Michael Lawrence (Foster Swift Professor of Constitutional Law); Barbara O'Brien (Editor, National Registry of Exonerations); Wenona Singel (Assoc. Director of the Indigenous Law & Policy Center)

June 14, 2017 in Recap posts, Who Sentences? | Permalink | Comments (18)

Fair Punishment Project starts "In Justice Today" to look closely at work of prosecutors

Via email I was alerted to the creation of "In Justice Today," a new publication of the Fair Punishment Project at Harvard Law School.  This introductory post explains the vision and goals of this notable new resource:

Ask yourself who are the most powerful people in the community in which you live and many might think of the mayor, the city council president, the owner of the local sports team, maybe the superintendent of schools.

But in many ways all of those people are trumped by the local elected prosecutor. The mayor and superintendent cannot send cops into your home and march you downtown in handcuffs, the prosecutor can do that.  They have the power to put people in jail, to choose not to bring charges, to seek the maximum sentence for one person while letting someone else off with a warning while determining which type of crimes will be prioritized while others will be ignored.

That’s an awesome and terrifying power, and how prosecutors wield that power can impact numerous lives and determine what type of community we all live in.  But in most communities, the prosecutor is an unknown figure.  Until recently most prosecutors enjoyed something close to a lifetime appointment. Rarely getting much attention or scrutiny....

Our goal is simple, we want to hold actors in the criminal justice system accountable for their actions.  Whether it’s a prosecutor putting a rape victim in jail when she doesn’t want to testify, a judge sentencing a young kid to 63 years in jail for driving with a suspended license, a DA charging a 12-year-old with a crime and putting them in the adult prison system, or continuing the prop up a death penalty system that becomes more ridiculous and cruel every day this blog will be looking for injustice and pointing the finger at the person who is most responsible.

June 14, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

New Sentencing Project policy brief on "Federal Prisons at a Crossroads"

The Sentencing Project has this notable new six-page policy brief titled "Federal Prisons at a Crossroads."  Here is how the data-rich little publication gets started:

The number of people incarcerated in federal prisons has declined substantially in recent years.  In fact, while most states enacted reforms to reduce their prison populations over the past decade, the federal prison system has downsized at twice the nationwide rate.  But recently enacted policy changes at the Department of Justice (DOJ) and certain Congressional proposals appear poised to reverse this progress.

Congress, the United States Sentencing Commission (USSC), and the DOJ reduced the federal prison population by reforming sentencing laws, revising sentencing guidelines, and modifying charging directives, respectively.  But the DOJ’s budget proposal for 2018 forecasts a 2% increase in the federal prison population.

The policy changes contributing to this reversal include:

• Attorney General Jeff Sessions’ directive instructing federal prosecutors to increase their reliance on mandatory minimum sentences for low-level drug convictions.

• The Attorney General’s instruction to federal prosecutors to increasingly pursue criminal convictions for immigration law violations and his memorandum paving the way for greater use of private prisons.

• Congressional proposals to create new mandatory minimum sentences or increase existing ones for a range of drug, immigration, and violent crimes.

These policy shifts run counter to research and practice on effective crime policy.  This brief explains why increasing the use and length of prison terms for people with drug convictions in particular — who account for half of the federal prison population — will produce little public safety benefit while carrying heavy fiscal, social, and human costs. Experience with criminal justice policy changes at the federal and state levels shows it is possible to substantially cut reliance on prisons without any adverse effects on public safety.

June 14, 2017 in Data on sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)